General Terms and Conditions
General delivery conditions and terms of sale of
Winterhalder Folientechnik GmbH & Co KG, Max-v.-Eyth-Str. 5 , 87616 Marktoberdorf
- Orders shall only become binding after order confirmation by the supplier. Changes and amendments should be in written format. All quotations are subject to change unless they are labelled as a firm offer.
- In the case of ongoing business relationships, these conditions shall also be valid for future business, whereby reference has not been expressively made to them, provided that the customer has been made aware of them as part of a previous order.
- The business conditions of the customer shall not apply unless they have been explicitly recognised by the supplier.
- Should individual conditions be or become invalid, the other conditions shall be unaffected by this.
- The prices are quoted ex works, excluding freight, customs, subsidiary import charges, and packaging, plus the legally stipulated value added tax.
- If important cost factors change considerably after submission of the quotation or after the order confirmation up to the time of delivery, the supplier and customer will make an arrangement concerning an adaptation of the prices.
- The supplier is not bound to previous prices for new orders (=follow-up orders).
II. Obligation of delivery and acceptance
- Delivery periods begin upon receipt of all the documents required to execute the order, the down payment and the timely provision of materials if this has been agreed. The delivery period is considered to be complied with upon notification of readiness for shipment, if the shipment is delayed or becomes impossible by no fault of the supplier.
- If an agreed delivery date is not complied with due to a fault of the supplier, the customer is entitled to claim compensation for damages resulting from the delay or to cancel the contract upon expiration of an appropriate additional period of time and under exclusive of further claims, provided that the supplier did not act with gross negligence or intent. Compensation for damages caused by delay is limited to a maximum of 5% of the part of the delivery which was not supplied in accordance with the contract. If the customer is in default of acceptance, it is not possible to cancel the order. The customer shall reserve the right to provide proof of greater damages.
- Appropriate partial deliveries and reasonable deviations from the order volumes up to plus / minus 10% are permitted.
- In the case of make-and-hold orders without an agreement of term, production batch sizes and acceptance dates, the supplier can demand a binding determination concerning this no later than three months after the order confirmation. If the customer does not respond to this demand within three weeks, the supplier is entitled to set a two-week grace period and thereafter withdraw from the contract and / or demand compensation for damages.
- If the customer does not fulfil his obligations to accept delivery, the supplier is not bound to the regulations concerning self-help sale without prejudice to other rights. In fact, the supplier can sell the delivery item on the open market after prior notification to the customer.
- Any occurrences of force majeure shall entitle the supplier to postpone delivery by the duration of the obstacle and an appropriate lead time, or to wholly or partly cancel the contract due to the unfulfilled part. Forces majeure shall include strikes, lockouts and unforeseeable unavoidable circumstances, such as operational break-downs, which make it impossible for the supplier to deliver on time despite reasonable attempts; the supplier must provide supporting documents about this. This shall also apply if the above obstacles occur during a delay or at the premises of a subcontractor.
The customer can ask the supplier to declare within two weeks whether he wants to cancel the contract or wants to deliver within an appropriate grace period. If the supplier does not declare this, the customer can cancel the unfulfilled part of the contract. The supplier will inform the customer immediately if a force majeure occurs as described in Clause 1.
IV. Packaging, shipment, transfer of perils and default in acceptance
- If nothing to the contrary is agreed, the supplier shall choose the packaging, type and method of shipment.
- Even in the case of freight-paid deliveries, the risk shall be transferred to the customer as soon as the delivery leaves the supplier’s factory. If the customer causes delays of shipment, the risk shall still transfer upon notification of dispatch readiness.
- Upon written request by the customer, the goods shall be insured at the customer’s own costs against any risk designated by him.
V. Retention of title
- Deliveries shall remain the property of the supplier until all claims by the supplier against the customer have been settled, even if the purchase price for specifically described receivables have been paid. In the case of running accounts, the ownership reserved on the deliveries (reserved goods) shall be considered a guarantee for the balance of the supplier’s invoice. If a liability of the supplier arising from a bill of exchange is legally justified in connection with the payment of the purchase price, then the reservation of ownership shall not expire before payment of the bill of exchange by the purchaser as the drawee.
- Any processing or development by the customer shall take place to the exclusion of the acquisition of ownership in accordance with § 950 BGB [German Civil Code] on behalf of the supplier; the supplier shall become co-owner of the goods produced in this way according to the ratio of the net invoice amount of his goods to the net invoice amount of the goods to be processed or developed, which shall serve as security as reserved goods for the claims of the supplier as per Clause 1.
- In the case that the customer processes (connects / mixes) the supplied goods with other goods that do not belong to the supplier, the conditions of §§ 947, 948 BGB [German Civil Code] shall apply with the consequence that the supplier’s co-ownership share of the new product shall now be considered as reserved goods in the sense of these conditions.
- The customer shall only be permitted to sell the reserved goods on in the course of ordinary business and under the condition that he shall agree a reservation of ownership as per Paragraphs 1 to 3 with his customers. The customer shall not be permitted to dispose of the reserved goods in any other way, particularly through pledging and security by transfer of ownership.
- In case of resale, the customer hereby hands over all claims arising to him through the resale and other justified claims against his customers with all secondary rights to the supplier until fulfilment of all the supplier’s claims. At the request of the supplier, the customer shall be obligated to provide the supplier immediately with all information and to submit all documents which are necessary to enforce the rights of the supplier against the customers of the customer.
- If the reserved goods are sold on by the customer after processing as per Paragraph 2 and/or 3 together with other goods that do not belong to the supplier, then the assignment of the purchase price claim as per Paragraph 5 shall only apply to the amount of the invoice value of the supplier’s reserved goods.
- If the value of the securities existing for the supplier exceeds the supplier’s total claims by more than 10%, then the supplier is obligated to release securities chosen by himself at the request of the customer.
- The supplier must be notified immediately of any pledging or confiscation of the reserved goods by third parties. Any costs of intervention arising from this must be covered by the customer, if they are not borne by the third party.
- If the supplier makes use of his reservation of ownership by taking back the reserved goods subject to the above conditions, he shall be entitled to sell the goods on the open market or by public auction. The withdrawal of the reserved goods shall take place at the achieved proceeds, but at no more than the agreed contract prices. Further claims for compensation, particularly loss of profit, remain reserved.
Complaints can only be acknowledged if they are submitted in writing within 10 days of the receipt of goods. For justified defects that have been acknowledged by us, we can either allow an appropriate price discount or take back the defective goods and supply a replacement or reimburse the equivalent value. Claims, particularly for compensation, reimbursement of wages or secondary damage in general, are excluded. Any concealed defects must be reported immediately, but no later than 14 days after their discovery.
Deviations for the surface weight (up to +/-15%) and in the general thickness (up to +/-20%) are technically unavoidable for films and cannot be recognised as grounds for complaint. The width and length tolerances amount to +/-5%, but at least 20 mm. The general tolerances of the GKV shall apply for weight and thickness deviations. For the production of bags and similar products, the accrual of a proportionately lower number of defective products is not technically avoidable and a complaint cannot be made about a proportion of up to 4%. In the same way, we must reserve the right to provide a numerical difference of 3%. Complaints cannot be raised about special ink colours. A thickness tolerance of 20% cannot be avoided for films, bags and sacks made from reclaimed materials. No guarantee can be made about colour deviations for products made from reclaimed materials, as the base material has already been subjected to certain colour deviations. Streaks, clouding of the material and differences in the lubricant content are possible for reclaimed films.
For cardboard and paper products, no liability can be taken for customary deviations in the sizing, smoothness and purity of papers, adhesion, stapling and printing. We will attempt to replicate specified colour shades exactly. For technical reasons, we cannot guarantee absolute compliance. Defects in a negligible part delivery shall not provide the customer with the right of cancellation for the remaining amount. Furthermore, we must be included in investigations in the case of complaints.
Data and information, assignment and use of our goods are without obligation and do not exempt the customer from their own inspections and trials. The customer is responsible for heeding the legal and official regulations for using our products. Further claims of the customer, particularly claims for compensation which did not arise directly on the delivery item, are excluded, unless the damage is based on the lack of a property, for which we have taken explicit liability in writing with the recognisable purpose of releasing the customer from damage.
VII. General limitations of liability
In all cases, in which the supplier is obligated to reimburse for damages or expenses notwithstanding the above conditions based on contractual or legal grounds for compensation, he shall only be liable if he, his managerial employees or vicarious agents acted with intent or gross negligence or caused an injury to life, body or health. The no-fault liability in accordance with the German product liability law shall remain unaffected. The liability for the culpable violation of essential contractual obligations shall also remain unaffected; however, liability shall be limited to foreseeable, contract-typical damages in the cases of P. 1. Any change to the burden of proof to the detriment of the customer shall not be connected with the above regulations.
VIII. Payment conditions
- All payments must be made in € (EURO) to the supplier.
- If nothing deviating has been agreed, the purchase price for deliveries or special services must be paid in full within 30 days of receipt of invoice or within 14 days with 2% discount. A discount shall only be granted if all previously due invoices have been paid without contention. No discount shall be granted for payments with a bill of exchange.
- If the agreed payment date is exceeded, interest at the legal interest rate of 8% above the base rate of the European Central Bank shall be calculated if the supplier does not demonstrate a greater loss. The customer shall reserve the right to provide proof of lower damages.
- The right to decline bills of exchange and cheques shall be reserved. Cheques and rediscountable bills of exchange are accepted only as full payment, all associated costs are chargeable to the customer.
- The customer may only offset or apply a right of retention if his claims are undisputed or established as final and absolute.
- The sustained non-compliance with payment conditions or circumstances, which cause serious doubt about the creditworthiness of the customer, shall result in the requirement of immediate payment of all the supplier’s demands. In addition, the supplier shall in this case be entitled to demand prepayments for any open deliveries or to cancel the contract after an appropriate period of time has passed without success.
IX. Commercial trademark rights and defect of title
- If the supplier is to supply using drawings, models, prototypes or parts provided by the customer, then the customer must guarantee that the trademark rights of third parties in the country of product destination are not infringed upon. The supplier shall refer the customer to any rights known to him. The customer must release the supplier from any third party claims and reimburse any damages incurred. If the supplier is prohibited from manufacturing or delivery by a third party under reference to a trademark right belong to said third party, then the supplier is entitled – without checking the legal situation – to cease work until clarification of the legal position by the customer and the third party. Should continuing with the order no longer be acceptable to the supplier due to the delay, he shall be entitled to withdraw.
- Any drawings and prototypes provided to the suppler, which have not led to the order, shall be returned if required; otherwise, he shall be entitled to destroy these three months after the tender was issued. This obligation shall apply to the customer accordingly. The party entitled to dispose by destruction must inform the other party of the intention prior to doing so and in good time.
- The supplier retains all copyrights and applicable commercial trademark rights, in particular all usage and exploitation rights for the models, forms, tooling, designs and drawings designed by him or by third parties at his instruction.
- If other defects in title should exist, these shall apply for No. VI. accordingly.
X. Place of fulfilment and court of jurisdiction
- The place of fulfilment is 87616 Marktoberdorf.
- The court of jurisdiction is the company headquarters of Winterhalder Folientechnik GmbH & Co KG, 87616 Marktoberdorf.
- Only German law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods dated 11th April 1980 (BGB 1989 P. 586) for the Federal Republic of Germany (BGB 1990 P. 1477) is excluded.