Terms and Conditions of Sale and Delivery of Riba Verpackungen GmbH
1.1 These terms and conditions are decisive for all - even future - legal relationships of a contractual and non-contractual manner between us and the customer, even if not expressly specified in individual cases. Opposing conditions of the customer do not make these terms and conditions of sale and delivery invalid, even if we do not expressly contradict them.
Deviating agreements apply only if we expressly confirm them in writing.
1.2 Our offers are subject to change without notice. The conclusion of the contract and other agreements, especially oral agreements, promises, and technical consulting do not become binding until we confirm them in writing; this confirmation, however, is made without delay.
- Scope of Delivery and Deviations
- In the case of deliveries, we reserve the right to 15% short or excess deliveries. In case of individual orders under 50,000 units and in case of collective runs with printing changes within the run, complaints cannot be made regarding short or excess deliveries up to the following amounts: up to 10,000 units per change up to 20%, up to 5,000 units per change up to 30%.
- Due to technical reasons, deviations in ink, colour registers, and sizes cannot be prevented, which means that complaints may be made only for considerable deviations. The customer may not complain about the delivery of a small amount of faulty goods, since this is technically not avoidable.
- We cannot offer a guarantee for the light resistance and abrasion resistance of the printing inks in a wet and dry state.
- Tolerances in regard to the film thickness and size deviations are regulated according to the respectively valid version of the GKV Prüf- und Bewertungsklausel für Hochdruck-Polyäthylen-Folien und Erzeugnisse (Testing and Evaluation Clause for High-Pressure Polyethylene Films and Products of the Umbrella Association for the Plastic Manufacturing Industry). The valid version has been put together by the Fachverband Halbzeug und Verpackung (Professional Association for Semi-Finished Products and Packaging) of the GKV and stored at the Bundesanstalt für Materialprüfung (German Federal Institute for Material Research) in Berlin, Germany.
- Delivery and Transfer of Risk
3.1 Risk transfers to the customer at the point in time of loading at the latest. The delivery is considered to be fulfilled as soon as the customer has been informed of the readiness to ship. If the delivery is not made due to reasons for which the customer is responsible, the risk is transferred together with the readiness to ship. In these cases, the ready-to-ship goods are stored at the cost and risk of the customer. The due date of the invoice is not affected hereby. All shipments are made at the cost and risk of the customer, even if the prices have been agreed to be free of cost up to the destination location.
- The recipient must report recognisable transport damage of any kind immediately, but within five workdays after receipt of the goods at the latest. Transport insurance will be taken out only if expressly desired by the customer. In the case of transport damage covered by transport insurance, we can choose whether to take the amount insured and provide a replacement or to demand the payment of the purchase price from the customer against the assignment of the amount insured.
- If not otherwise agreed, the choice of shipping type lies with us. We are not liable for property damage caused by our vehicles or drivers in connection with the delivery unless the damage was intentional or grossly negligent.
- Delivery Deadlines
- Delivery and performance deadlines, which can be agreed in a binding or non-binding manner, should be specified in writing and do not begin until the customer has provided the technical documents for which it is responsible, such as printing plates, fulfilled all required formalities, and made all agreed payments.
- If a binding delivery deadline has been exceeded, the buyer has the right to allot a reasonable extension period and, if we do not deliver before this extension period has expired, cancel the contract by written declaration. Contract penalties are excluded. Six weeks after a non-binding delivery deadline has been exceeded, the customer may demand in writing that we deliver within a reasonable extension period.
- Delivery and performance deadlines are extended by the duration of an obstruction due to force majeure, measures implemented by public authorities, strikes, lockouts, danger of war, shortages of raw materials and fuel, and unforeseeable circumstances for which we are not responsible and which make delivery unreasonably difficult or impossible for us and our suppliers. If the obstruction lasts for more than 3 months, we have the right to cancel the unfulfilled portion of the contact completely or partially. After alloting a reasonable extension period, the customer has the right to cancel the contract due to the unfulfilled portion.
- Prices and Terms and Conditions of Payment
- The invoice is issued when we are ready to ship. Payment should take place within 14 days for 2% discount or net in 30 days at the latest as of the receipt of the invoice.
- If payment takes place later than 30 days from the invoice date, we have the right to charge interest to the amount of the interest rate calculated by commercial banks for overdraught credit at the time of delivery or at least 4% above the discount rate of the Bundesbank (German Central Bank). In case of default, we reserve the assertion of additional damage beyond the interest due.
5.3 We accept bills of exchange only in case of a special agreement and only at our purchase rates. Bill of exchange payments are not considered to be cash payments and do not authorise the customer to deduct a discount. The bill of exchange fees and taxes we calculate must be repaid immediately after being posted.
5.4 The customer is not authorised for offsetting insofar as the amounts in question are not undisputed or legally determined claims.
- Price Escalator Clause
If individual purchase prices or wages to be paid have increased by more than 5% three months after the conclusion of the contract, we have the right to increase the agreed price accordingly in order to pass on the increased acquisition and wage costs to the customer. This has nothing to do with an increase in our margin. Insofar as we have sole influence on individual cost items, they will not be taken into consideration.
- Retention of Title
- Until the complete payment of the purchase price and all other present or future claims due to us from the customer that arise or will arise from the business relationship with the customer, the delivered goods remain our property. The inclusion of the purchase money claim in a current invoice and the recognition of a balance do not affect the retention of title. When all claims against the customer are paid, the retention of title expires.
- Any processing or manufacturing of goods under a retention of title according to 7.1 takes place for us without any rights against us arising from the customer or a third party. We immediately acquire ownership of the item newly created through processing or manufacturing. In case of a combination or mixture of the - processed and/or manufactured, if pertinent - goods we provided, we become co-owners according to §947 Sect. 1, § 948 BGB (German Civil Code). Insofar as the customer acquires (co-)ownership of the processed, manufactured, combined, or mixed item, it transfers this (co-) ownership to us; the customer safeguards the product for us.
7.3 Within the course of ordinary business, the customer has the right to sell, process, or manufacture the goods under retention of title according to 7.1 or 7.2. This authority does not apply in the cases of Sections 8.2 and 8.3 of these terms and conditions. The customer, however, is under no circumstances authorised to resell or otherwise use by agreeing upon a contract of assignment with its customers, pawn, combine or mix the product or assign it as a security if it attains sole ownership in this way (§§ 947, 948 BGB).
- If the goods under retention of title are resold according to 7.1 or processed and/or manufactured according to 7.2 or if the processed or manufactured item is resold or otherwise used according to 7.2, all claims that the customer acquires in this way will be assigned to us together with all ancillary rights and security interests insofar as the security interests of third parties are not affected.
If an item is created through processing or manufacturing, combination, or mixing and this item is co-owned by third parties or whose security rights are continued by third parties, the following applies in case of a resale: The customer will assign to us all claims achieved through the sale of the item that correspond to the ratio of the value of the items originally provided by us under retention of title to the value of the items provided by the third party.
- Insofar as the value of several objects signed over as security according to the provisions above (assigned claims, items under retention of title or transfer of ownership) covers the amount of the claims of our Group by more than 110%, we are obliged to sign the securities (back) over to the customer, as we choose.
- The customer is authorised to collect claims as long as the collection remains within the scope of ordinary business, but not in the case of the facts of the matter as described in § 8.3. The customer is not authorised to make further assignments, even if they take place in the interest of security.
- Upon our demand, the customer is obliged to inform its debtors of the assignment. In the case of the facts of the matter as described in Section 8.3 of these terms and conditions, we are also authorised to inform the debtors of the customer of this assignment. At any time, we can demand from the customer that it provide us with all necessary information about the assignment, including the provision of invoice copies. The customer must provide us with all necessary information and documents for a legal dispute.
- The customer is obliged to inform us immediately in case third parties have access to the objects used for our security. The customer must bear the costs for the assertion of the security rights against debtors, co-obligees, and third parties. This applies only in case of success and as long as a prior claim of the debtor was not successful.
- Contingent liabilities like suretyships, bills of exchange, and checks are also considered to be claims. Rights from the retention of title and all special forms thereof defined in these terms and conditions are applicable until the complete indemnification of contingent liabilities that we have entered in the interest of the customer.
- Recission of the Contract, Default, and Insolvency
- In case we expressly agree to the recission of a contractually granted comission upon the customer's orders, the customer must pay us 10% of the commission sum, even if we do not expressly mention this payment during the recission.
- If the customer defaults, we can demand the return of the goods we delivery as a security without cancelling the contract. A cancellation declared in case of a customer default must be made in writing. In case of a cancellation, we are entitled to 10% of the commission sum as compensation for the cost of delivery and return, as long as the customer does not prove that we suffered no or only little damage. We must provide proof of a greater damage.
8.3 If the financial circumstances of the customer worsen considerably after the conclusion of the contract in such a way that our payment claims are endangered, for example the customer defaults in the fulfilment of other debts owed to us, a bill of exchange or check is not redeemed when due, the customer generally stops payment, or bankruptcy proceedings are opened in regard to its assets, we have the right to make the continuation of ongoing, long-term delivery or upcoming, intended delivery dependent upon the provision of security as we choose.
8.4 In the case described under 8.3, we have a right to cancel when security is not provided within a reasonable period of time.
- Warranty and Liability
- For all defects, including missing guaranteed properties of our deliveries and services, we are liable as follows: Complaints are recognised only if they are asserted immediately in writing before the use or sale of the goods. 8 calendar days after the arrival of the goods at the destination, the delivery is considered to be accepted as in perfect condition. After this period has expired, only hidden defects that were not found after immediate inspection after receipt may still be asserted.
- Insofar as the customer has warranty claims against us, we are obliged to deliver faultfree goods simultaneously with the return of the defective goods or reduce the purchase price or repair the goods as we choose. Claims culpa in contrahendo exist only if an essential contractual obligation was violated. If we decide on the repair or new delivery alternative, the customer does not have the right to cancel the contract until the second repair or redelivery attempt has failed.
- If printed products of the customer are being manufactured, the customer guarantees to us that the proprietary rights of third parties are not violated through the manufacturing and delivery of the objects. Our copyrights always remain unaffected.
- Insofar as a third party forbids us from manufacturing objects due to one of these proprietary rights, we have the right to stop manufacturing and delivery and demand compensation for the costs spent without being obligated to checking the legal situation and with the exclusion of all damage claims on the part of the customer. If the customer does not provide legally binding proof that the prohibition of the third party was not lawful within a reasonable period of time, we have the right to cancel the contract. The customer must inform us about the status of the legal disput at all times upon request. In the case of our cancellation, we reserve the assertion of further damage.
- The printing documents that we made or provided, like drafts, drawings, films, printing plates, printing cylinders, platens, rollers, and all kinds of tools remain our property even if the customer pays the corresponding manufacturing costs. We have the right to mark all goods we manufacture with our trademark, unless another agreement has been made with the customer.
- Place of Fulfilment, Place of Jurisdiction, and Applicable Law
- The sole place of jurisdiction for all claims is Hamm, Westphalia, Germany, unless otherwise required by mandatory legal regulations. We have the right, however, to sue a customer at its legal place of jurisdiction as well.
- Only domestic German law applies, as applicable amongst German contracting parties. The uniform law regarding the international purchase of movable property does not apply in this case.
- Final Provision
12.1 If individual parts of these terms and conditions become invalid or excluded due to a separate agreement, the validity of the remaining provisions is not affected hereby.