General terms and conditions
Status: Juli 2020
General terms of sale
1 These General Terms and Conditions of Business, Delivery, Payment and Sale (hereinafter referred to as "Terms and Conditions of Sale") shall apply to all offers, sales and deliveries of Weroca Kartonagen GmbH & Co. KG to the Purchaser, even if they are not expressly mentioned in later contracts. They shall apply exclusively in national and international business transactions with companies, legal entities under public law and special funds under public law.
2. Terms and conditions of the Purchaser which are contrary to, additional to or deviating from these Terms and Conditions of Sale shall not form part of the contract unless Weroca Kartonagen GmbH & Co. KG has expressly agreed to their validity in writing. These Terms and Conditions of Sale shall apply even if Weroca Kartonagen GmbH & Co. KG makes a delivery to the Buyer without reservation in the knowledge of the Buyer's conflicting or deviating terms and conditions.
3. Individual agreements with the Purchaser shall in any case take precedence over these Terms and Conditions of Sale. Rights which Weroca Kartonagen GmbH & Co. KG are entitled to under the statutory provisions beyond the scope of these Terms and Conditions of Sale shall remain unaffected.
II Conclusion of Contract
1. Offers and cost estimates of Weroca Kartonagen GmbH & Co. KG are subject to change and non-binding unless they are expressly designated as binding offers.
2. An order shall only become binding when it has been accepted by Weroca Kartonagen GmbH & Co. KG in writing or by telefax or in text form by means of an order confirmation, unless delivery or invoicing is effected immediately. An order confirmation issued with the aid of automatic devices which does not include a signature and name shall be deemed to be in writing. Insofar as the order confirmation contains obvious errors, spelling or calculation mistakes, it is not binding for Weroca Kartonagen GmbH & Co. KG shall not be binding.
3. The Buyer shall be bound by his order/offer for 10 working days. This period shall commence from the date of receipt of the order / offer by Weroca Kartonagen GmbH & Co. KG.
4. The time period for the delivery of the goods to be delivered by Weroca Kartonagen GmbH & Co. KG shall be the quality of the goods to be delivered as specified by Weroca Kartonagen GmbH & Co. KG are decisive for the quality of the delivery item owed by Weroca Kartonagen GmbH & Co. The information contained in catalogues, brochures, circulars, advertisements, illustrations and price lists does not determine the quality of the delivery item unless it has been expressly included in this specification with reference to the specification.
5. If the customer subsequently requests changes to the order, these changes shall only be effective if the parties to the contract have reached agreement on them.
6. Illustrations, drawings, indications of weight and dimensions as well as other descriptions of the delivery or performance from the documents of Weroca Kartonagen GmbH & Co. KG are only approximate unless they have been expressly confirmed in writing or by electronic confirmation are designated as binding. They do not constitute an agreement or guarantee of a corresponding quality of the delivery or service. In the event that the target quality of the delivery or service has been bindingly agreed with the Buyer, changes by Weroca Kartonagen GmbH & Co. KG shall be permitted, provided that they are based on mandatory legal provisions and are reasonable for the Buyer. Weroca Kartonagen GmbH & Co. KG reserves the right to make changes in design and form of the goods, provided that the changes are not substantial and reasonable for the Buyer. In the event of unreasonableness, the customer shall be entitled to withdraw from the contract. Further claims are excluded.
7. The assumption of guarantees and the procurement risk requires express agreements between the parties in which it is expressly stated that a guarantee and/or the procurement risk is assumed.
III. delivery; delivery periods; delay; force majeure
1. Unless expressly agreed otherwise, delivery shall be effected from the distributing warehouse of Weroca Kartonagen GmbH & Co. KG , Walter-Werning-Strasse 5, 33699 Bielefeld, Germany, which is also the place of performance. At the request and expense of the Purchaser the goods shall be shipped to another destination (hereinafter referred to as "sale to destination"), whereby Weroca Kartonagen GmbH & Co. KG shall in this case be entitled to determine the mode of shipment itself and to hand over the goods to the person in charge of transport (in particular transport company, route of shipment and packaging). At the request of the Purchaser - and at the Purchaser's expense - the Goods shall be insured by a transport insurance against the risks to be specified by the Purchaser.
2. The scope of the delivery shall be determined by the written order confirmation of Weroca Kartonagen GmbH & Co. KG shall be authoritative. Any changes to the scope of delivery requested by the Buyer as well as to the delivery item itself require the written confirmation of Weroca Kartonagen GmbH & Co. KG.
3. Weroca Kartonagen GmbH & Co. KG is entitled to make partial deliveries, provided that this is reasonable for the Buyer.
4. Unless otherwise agreed, in case of deliveries on call, the Buyer shall be obliged to determine in advance delivery schedules covering at least 6 months and to call for deliveries according to the determined delivery schedules in due time before the respective delivery date. If the Buyer fails to comply with this obligation or fails to comply with it as stipulated, Weroca Kartonagen GmbH & Co. KG shall be entitled, after having set a reasonable period of time and after having given notice thereof, to make the call-off and/or the schedule itself, to deliver the goods or to withdraw from the contract. The right to claim damages for breach of duty is not excluded by the withdrawal.
5. Unless otherwise agreed, the delivery time shall be the delivery date specified in the order confirmation. If the Buyer has not provided all documents, permits, releases etc. to be procured by him at least one month prior to the agreed delivery date, the fixed delivery date shall be extended by one month, starting from the date on which the aforementioned documents, permits, releases etc. have been provided in full to Weroca Kartonagen GmbH & Co. KG in full.
6. A delivery period begins with the dispatch of the order confirmation by Weroca Kartonagen GmbH & Co. KG, however, not before the complete provision of any documents, permits and releases to be obtained by the Purchaser, the receipt of an agreed down payment as well as the timely and proper performance of any other cooperative acts of the Purchaser.
7. Agreed delivery periods shall be deemed to have been observed if Weroca Kartonagen GmbH & Co. KG has made the goods available at the place of delivery or - in case of a sale by delivery to a place other than the place of performance in accordance with paragraph 1 sentence 2 - has handed over the goods to the person designated to carry out the transport or the Purchaser has announced his refusal to take delivery.
8. Weroca Kartonagen GmbH & Co. KG shall not be liable for impossibility of delivery or for delays in delivery if such impossibility or delay is caused by force majeure or other events which were not foreseeable at the time of conclusion of the contract (e.g. operational breakdowns of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, pandemics, epidemics, difficulties in procuring necessary official permits, official measures or the failure of suppliers to deliver, or to deliver correctly or on time) which Weroca Kartonagen GmbH & Co. KG is not responsible for. If such events make it substantially more difficult or impossible for the Buyer to effect delivery or performance and the hindrance is not only of a temporary nature, the Buyer is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period.
9. If the Purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, the Purchaser may withdraw from the contract by immediate written notice to Weroca Kartonagen GmbH & Co. KG to withdraw from the contract. This right of rescission shall only exist if the delay is caused by Weroca Kartonagen GmbH & Co. KG is responsible for the delay.
10. If the goods have been handed over to the Buyer on Euro pallets or lattice boxes (load carriers), the Buyer shall notify Weroca Kartonagen GmbH & Co. KG in equal numbers and of the same type and quality at the place of the original delivery.
11. Notwithstanding the provision in clause XII. 1. the Purchaser is obliged to inspect the goods upon delivery for any externally recognizable damage and to notify any damage to the transport company effecting the delivery and to have a corresponding written confirmation issued. If the customer fails to comply with this obligation, he shall be liable to Weroca Kartonagen GmbH & Co. KG for compensation of the resulting damages.
IV. Transfer of Risk
1. The risk of accidental loss or accidental deterioration of the goods shall pass to the Customer as soon as Weroca Kartonagen GmbH & Co. KG makes the goods available at the place of performance according to clause III. para. 1 sentence 1 or - in case of a sale to destination according to clause III. para. 1 sentence 2 - to the party authorized to carry out the transport to a specific person. This shall also apply if partial deliveries are made or Weroca Kartonagen GmbH & Co. KG has assumed the transport costs in individual cases in deviation from clause III. paragraph 1 sentence 2.
2. If the customer is in default of acceptance, Weroca Kartonagen GmbH & Co. KG may claim compensation for the resulting damage as follows: For each day of delay 0.5 % of the net price of the delivery, but in total not more than 5 % of the net price of the delivery. The parties to the contract reserve the right to claim further damages and to prove that the damages incurred are less. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the point in time at which he is in default of acceptance.
3. Delivered goods are to be accepted by the customer without prejudice to his claims for defects even if they have minor defects. The customer is also obliged to accept the goods if the goods made available show deviations in quantity of up to 5% or if the goods made available were delivered insignificantly too early.
1. The agreed price in EURO, which is stated in the order confirmation, plus value added tax, shall apply The statutory value-added tax is not included in the price and is shown separately in the invoice at the statutory rate applicable on the day of invoicing. The costs for transport, insurance, customs etc. are charged separately, unless otherwise agreed between the parties.
2. If more than four months elapse between order confirmation and delivery and if during this period price increases occur, in particular due to wage increases, increases in raw material costs, general price increases due to inflation or comparable circumstances, Weroca Kartonagen GmbH & Co. KG shall be entitled to charge a correspondingly higher price. This shall also apply if, after submission of the offer by Weroca Kartonagen GmbH & Co. KG's order confirmation or after the conclusion of a framework contract with fixed price agreement by Weroca Kartonagen GmbH & Co. KG, the raw material prices of the respective goods concerned or other material cost factors such as, in particular, energy, labour, transport or insurance costs change substantially (i.e. by at least 10 %). Weroca Kartonagen GmbH & Co. KG shall then be entitled to reasonably increase the prices to the extent that they are affected by the cost increase. Weroca Kartonagen GmbH & Co. KG shall in this context take into account the legitimate interests of the customer, in particular with regard to any obligations already assumed by the customer to resell the goods at a certain price. The price-changing factors will be determined by Weroca Kartonagen GmbH & Co. KG will provide evidence of the price-changing factors to the customer upon request. This shall apply vice versa in favour of the Buyer in case of a corresponding price reduction. If one party cannot reasonably be expected to adhere to the contract as a result of the price adjustment, it may rescind the contract by immediate declaration to the other party.
3. In the event of deviations in quantity or weight which are within the tolerances regulated in Section VIII, the price shall be calculated on the basis of the actual delivery quantity or the actual delivery weight.
4. In the case of coiled products, the core inside the roll is included in the net weight In the case of packaged products, the net weight is determined by deducting the weight of the packaging from the total weight. The total weight consists of net weight and packaging and is determined by weighing.
5. Claims of Weroca Kartonagen GmbH & Co. KG for payment of the purchase price shall become statute-barred after five years in deviation from § 195 BGB.
VI. industrial property rights
1. The goods supplied by Weroca Kartonagen GmbH & Co. KG, such as drafts, drawings, printing plates, films, printing cylinders and plates, shall remain the property of Weroca Kartonagen GmbH & Co. KG even if costs are reimbursed proportionately by the Buyer.
2. Any costs arising from the development and execution of an order at Weroca Kartonagen GmbH & Co. KG, copyrights and/or industrial property rights shall not be transferred by the sale of the delivery item. This shall also apply if the Buyer bears a share of the costs for the development. Weroca Kartonagen GmbH & Co. KG is in particular entitled to exploit such copyrights and/or industrial property rights also for orders of third parties.
3. Unless otherwise agreed Weroca Kartonagen GmbH & Co. KG shall be entitled to visibly affix its company logo or an identification number to the delivery items manufactured by it.
4. A fee is payable for samples, sketches and drafts, etc., which are expressly ordered or commissioned by the customer, even if the main order for which the samples, sketches and drafts, etc. have been prepared is not placed.
5. It is the responsibility of the customer to check whether the documents provided by the customer infringe the rights of third parties, in particular copyrights, industrial property rights (design patents, patents, utility models, trademarks). If Weroca Kartonagen GmbH & Co. KG is held liable by third parties for the use, exploitation or reproduction of the documents and/or templates provided by the Buyer on the grounds of infringement of copyrights and/or industrial property rights or on the grounds of infringement of the law against unfair competition, the Buyer shall indemnify Weroca Kartonagen GmbH & Co. KG in the defence against such infringement and to compensate Weroca Kartonagen GmbH & Co. KG thereby incurred.
VII Obligations under the German Packaging Act
1. Brings Weroca Kartonagen GmbH & Co. KG, on behalf of the Buyer, applies to the products signs of a nationwide system within the meaning of § 3 para. 16 of the German Packaging Act (e.g. "Der Grüne Punkt"), the Buyer shall be deemed to be the "manufacturer" of the sign within the meaning of § 3 para. 16 of the German Packaging Act. Packaging Act and must therefore pay the fees directly to the nationwide system.
2. If the customer violates the provisions of the Packaging Act and therefore Weroca Kartonagen GmbH & Co. KG, the Purchaser shall be obliged to indemnify Weroca Kartonagen GmbH & Co. KG all expenses incurred in this connection.
3. If the packaging is service packaging filled with goods within the meaning of Section 3 para. 1 sentence 1 no. 1 lit. a) of the German Packaging Act which typically accumulates at the private end consumer and which is put into circulation for the first time by the Buyer, the provisions of the above para. 1 shall apply accordingly if the Buyer participates in a system within the meaning of Section 3 para. 16 of the German Packaging Act itself.
4. If the customer demands from Weroca Kartonagen GmbH & Co. KG pursuant to sec. 7 para. 2 sentence 1 of the German Packaging Act that Weroca Kartonagen GmbH & Co. KG with regard to the goods delivered by Weroca Kartonagen GmbH & Co. KG participates in one or more systems within the meaning of sec. 3 para. 16 of the German Packaging Act with respect to the service packaging delivered to the Buyer by Weroca Kartonagen GmbH & Co. §§ 9, 10 and 11 of the Packaging Act and carries out a registration, data reporting and declaration of completeness for the customer, the following shall apply:
a) The assumption of the obligations according to § 7 Para. 2 Sentence 3 in conjunction with § 9, 10 and 11 of the Packaging Act shall apply. §§ Sections 9, 10 and 11 of the Packaging Act by Weroca Kartonagen GmbH & Co. KG shall only take place if the Buyer has given Weroca Kartonagen GmbH & Co. KG in writing. In this case Weroca Kartonagen GmbH & Co. KG shall confirm such written request to the Buyer in writing.
b) If Weroca Kartonagen GmbH & Co. KG assumes on behalf of the Customer the participation in a system pursuant to sec. 7 para. 2 sentence 1 of the German Packaging Act and the registration, data reporting and submission of the declaration of completeness pursuant to sec. 7 para. 2 sentence 3 in conjunction with sec. §§ Sections 9, 10 and 11 of the German Packaging Act, the Purchaser is obliged to notify Weroca Kartonagen GmbH & Co. KG the costs incurred thereby, namely the costs including the administrative expenses for the use of the nationwide system within the meaning of Section 3 para. 16 of the Packaging Act (e.g. Dual System) as well as the costs for registration, data transmission and submission of the declaration of completeness and - if requested - the costs for the application of the mark of a nationwide system, such as "Der Grüne Punkt", in full.
c) The costs for participation in a nationwide system, for registration, data transfer and submission of the declaration of completeness, the administrative expenses and - if desired - the costs for the application of the mark of a nationwide system, such as "Der Grüne Punkt", shall be shown separately on the invoice to the Customer with each delivery of the service packaging. The basis for this is the scale of charges for the area-wide system used.
d) Weroca Kartonagen GmbH & Co. KG is free to choose the nationwide system.
5. The above paragraphs 1 to 3 shall not apply to packaging which does not arise in the territory of the Federal Republic of Germany but abroad and which therefore does not have to be disposed of in accordance with the German Packaging Act. The customer is rather responsible for the disposal of the packaging in accordance with the respective applicable legal provisions.
VIII. Packaging and Shipping, Tolerances
1. Weroca Kartonagen GmbH & Co. KG owes packaging customary in the industry.
2. Unavoidable deviations and fluctuations may occur in the manufacturing process due to production. Unless otherwise agreed, the following tolerances apply.
a) Paper in relation to the agreed basis weight:
up to 39 g/m2 +/- 8
40 - 59 g/m2 +/- 6
60 and more g/m2 +/- 5 % g/m2
(b) Plastic films in relation to the agreed thickness:
less than 11 my +/- 20 %
less than 15 my +/- 15
from 15 my - 25 my +/- 10 %
greater than 25 my +/- 8
(c) Aluminium foil, laminated film, regenerated cellulose film and other materials in relation to the agreed thickness or weight per unit area (depending on which dimension is the basis of the contract; applies separately or as part of another product)
+/- 10 %
3. the following dimensional deviations are to be tolerated by the customer:
a) Paper and paper combinations
in the length +/- 4 mm
in width for bag widths less than 80 mm +/- 3
in width for bag widths of 80 mm and more +/- 2
in the width and in the cut-off length +/- 3 mm
in the run length +/- 3 %
in the length +/- 5 mm
in the width +/- 5 mm
b) Plastics and aluminium +/- 5
c) The dimensional deviations for the materials mentioned under a) with regard to rolls and formats and under b) also apply to the position of the print as well as the punching and embossing on these materials. For the bags mentioned under a), a dimensional deviation of +/- 4 mm for bag widths over 80 mm and of +/- 3 mm for bag widths of 80 mm and less applies to the position of the print as well as the punching and embossing in the width. For technical reasons, register fluctuations in printed products cannot be avoided, as they depend on the material, the design and the printing process. Only substantial deviations entitle to a complaint.
4. In all productions Weroca Kartonagen GmbH & Co. KG has the right to excess or short deliveries of up to 20 % of the ordered quantity. In case of sale by quantity (quantities of less than 50,000 pieces and in case of collective runs with printing changes within the run, as well as in case of sale by weight (for weights less than 500 kg) up to 30 % of the quantity ordered. In the event of unreasonableness for the customer, a different arrangement shall be made in individual cases. The delivery will be invoiced in full for the actual quantities delivered.
1. Weroca Kartonagen GmbH & Co. KG uses standard printing inks for printing. If special demands are made on the inks, such as high light fastness, alkali fastness, abrasion resistance, suitability for contact with foodstuffs etc., the customer must make special reference to this when placing the order.
2. No guarantee can be given for the light fastness of the material and printing inks, unless it is unreasonable for the customer, as the suppliers of raw materials and inks also do not guarantee the light fastness of the inks. Likewise, no guarantee can be given for the abrasion resistance of the printing inks, unless it is unreasonable for the customer.
3. Minor deviations of the colour, insofar as these are customary in trade, Weroca Kartonagen GmbH & Co. KG reserves the right to minor deviations in colour, provided that this is not unreasonable for the customer. They do not entitle the Buyer to refuse acceptance of the goods or to a price reduction. Proofs shall be submitted prior to printing if expressly requested by the Buyer or if Weroca Kartonagen GmbH & Co. KG deems this necessary. As these proofs (e.g. proof, cromalin, offset proof etc.) are not produced by the flexographic printing process, considerable deviations from the later production run cannot be avoided. Proofs from the machine, which are requested by the customer, will be invoiced separately according to time and effort.
4 For plastic products Weroca Kartonagen GmbH & Co. KG cannot assume any warranty for migration of plasticizers or similar migration phenomena and for the consequences derived therefrom, unless it is unreasonable for the purchaser. As far as Weroca Kartonagen GmbH & Co. KG in deviation from clause IX. para. 4 sentence 1, clause XIII. of these conditions shall apply.
5. Weroca Kartonagen GmbH & Co. KG shall not be responsible for the consequences of errors in the "film masters" or other similar materials which have been handed over to it by the Buyer for the printing of the uniform commodity code or other similar code, nor for the difficulties or their consequences which may arise when using the printed code. Among the materials supplied by Weroca Kartonagen GmbH & Co. KG shall also be deemed to be the galley proofs of printing work containing a uniform commodity code approved by the Buyer.
6. The EAN bar code is printed in accordance with the state of the art and taking into account the relevant implementing regulations of the CCG (see Co-Organisation series, issue 2, The EAN bar code).
7. No further promises, in particular those concerning reading results at the cash desks of the trade, can be made due to possible influences on the bar codes after delivery by the customer and due to the lack of uniform measuring and reading technology.
8. Weroca Kartonagen GmbH & Co. KG shall not be liable for defects caused by printing plates and artwork provided by the Buyer and/or his vicarious agents and/or assistants. If Weroca Kartonagen GmbH & Co. KG detects text or image errors during production and stops or interrupts production on account of such errors, the Buyer shall bear the additional costs incurred in connection therewith.
X. Material and Design
1. In the absence of special instructions on the part of the purchaser, orders will be executed using materials customary in the industry and in accordance with known manufacturing processes. When using the packaging for foodstuffs, the suitability of the material for foodstuffs is expressly agreed with Weroca Kartonagen GmbH & Co. KG for the suitability of the material for foodstuffs. Subsequently, no notices of defects with regard to the behaviour of the packaging material in relation to the filling goods and vice versa cannot be raised if the Buyer does not expressly refer to special properties of the filling goods and/or the use for foodstuffs and Weroca Kartonagen GmbH & Co. KG has been given the opportunity to comment on this. These notes and comments must be made in writing.
2. Recycling raw materials are supplied by Weroca Kartonagen GmbH & Co. KG carefully selects recycling raw materials. Regenerated foils and recycled papers may, however, from batch to batch show variations in surface quality, colour, purity, odour and physical values which do not entitle the Buyer to give notice of defects. Weroca Kartonagen GmbH & Co. KG undertakes, however, to assign to the Buyer any warranty claims and/or claims for damages against the Supplier based on the quality of the regenerated foils and the recycled papers.
XI. Terms of Payment
1. Payments are due for payment on the agreed payment date If no specific date has been agreed, payments shall become due upon receipt of the invoice or a corresponding payment schedule. If the receipt of the invoice or the payment schedule is uncertain, payments shall be made upon receipt of the deliveries and services of Weroca Kartonagen GmbH & Co. KG shall become due.
2. Payment by cheque is excluded, unless it is agreed separately in individual cases.
3. Unless otherwise agreed, all payments must be made net within 8 days of the invoice date.
4. Payment shall be deemed to have been effected at the time when Weroca Kartonagen GmbH & Co. KG is able to dispose of the amount.
5. If the payment period is exceeded, Weroca Kartonagen GmbH & Co. KG is entitled to charge default interest at a rate of 9 percentage points above the base rate (Section 247 BGB). The right to claim further damages is reserved.
6. If the Customer is in default of payment, Weroca Kartonagen GmbH & Co. KG shall be entitled to demand immediate payment of all claims arising from the business relationship, even if they are not yet due. This shall not apply if the Purchaser is not responsible for the default.
7. In case of outstanding invoices of Weroca Kartonagen GmbH & Co. KG, payments shall in each case be deemed to cover the oldest due claim, unless such claim is not a claim against which the Buyer has asserted a right of retention.
8. Counterclaims of the Customer shall only entitle the Customer to set-off and to assert a right of retention if they have been finally adjudicated upon or are undisputed. The customer can only assert a right of retention if his counterclaim is based on the same contractual relationship.
9. Weroca Kartonagen GmbH & Co. KG shall be entitled to execute or render outstanding deliveries or services only against prepayment or provision of security if, after conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the Buyer and which will result in the payment of outstanding claims of Weroca Kartonagen GmbH & Co. KG by the Buyer under the respective contractual relationship is endangered. This shall apply mutatis mutandis if the Buyer delays payment of outstanding claims of Weroca Kartonagen GmbH & Co. KG and does not raise undisputed or legally binding objections to the claims of Weroca Kartonagen GmbH & Co. KG exist.
1. The rights of the customer in respect of defects are subject to the condition that the customer has complied with his statutory obligations to examine and give notice of defects (Sections 377, 381 HGB), in particular that he has examined the delivered goods immediately upon receipt and that Weroca Kartonagen GmbH & Co. KG immediately notifies Weroca Kartonagen GmbH & Co. KG in writing of obvious defects and deficiencies which were recognizable during such inspection. The Buyer shall notify Weroca Kartonagen GmbH & Co. KG in writing without undue delay after their discovery. Such notice shall be deemed to be without undue delay within the meaning of sentences 1 and 2 if it is given within 3 working days, whereby, in order to meet the deadline, the receipt of the notice by Weroca Kartonagen GmbH & Co. KG is decisive. If the Buyer fails to properly inspect the goods and/or notify defects, Weroca Kartonagen GmbH & Co. KG for the defect shall be excluded. The Buyer shall have notified Weroca Kartonagen GmbH & Co. KG in writing.
2. In the case of the examination of defects of the goods to be delivered, representative samples, i.e. samples taken in reasonable number, in sufficient dispersion and with professional care, are sufficient if the delivery of a larger quantity of goods of the same kind is concerned, in which a complete examination of the goods is not feasible within the meaning of Section 377 (1) of the German Commercial Code (HGB) or cannot reasonably be expected of the Buyer due to the circumstances of the specific case.
3. Claims for subsequent performance are excluded in the case of minor deviations that are reasonable for the customer. If the total quantity of flexible packaging delivered shows defects of up to 3% of the total quantity, neither the total quantity can be rejected as defective nor can defects be claimed on account of this maximum 3% of defective flexible packaging. It is irrelevant whether the defect lies in processing or printing.
4. Weroca Kartonagen GmbH & Co. KG shall be given the opportunity to inspect any defects of the delivery complained of at the place where the goods are located.
5. In case of defects of the goods Weroca Kartonagen GmbH & Co. KG shall be entitled at its own discretion to remedy the defect or to deliver defect-free goods. The right of Weroca Kartonagen GmbH & Co. KG's right to refuse subsequent performance under the statutory requirements remains unaffected.
6. In all cases the statutory special provisions shall remain unaffected in the case of final delivery of the unprocessed goods to the consumer, even if the consumer has processed them further (supplier recourse according to § 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product.
7. If the rectification of defects fails after a second unsuccessful attempt, the purchaser may, at his discretion, withdraw from the contract or reduce the purchase price.
8. If the goods are not at the place of delivery, the Buyer shall bear all additional costs incurred by Weroca Kartonagen GmbH & Co. KG thereby incurred in remedying defects, unless the transfer to another location is in accordance with the contractual use.
9. Rights in respect of defects do not exist
(a) In the case of natural wear and tear;
b) In the case of defects which arise after the transfer of risk as a result of improper handling (e.g. deviating from the operating instructions), improper storage, or care or excessive strain or use;
c) In the case of defects which arise due to force majeure, special external influences which are not provided for under the contract, or due to the use of the goods outside the use provided for under the contract or normal use.
10. If a notice of defects is unjustified, Weroca Kartonagen GmbH & Co. KG shall be entitled to demand reimbursement of the expenses incurred from the Purchaser, unless the Purchaser proves that he is not at fault with regard to the unjustified notice of defect.
11. Weroca Kartonagen GmbH & Co. KG shall not be liable for defects which are due to the fact that the Buyer has failed to comply with one of the specifications of Weroca Kartonagen GmbH & Co. KG's specifications or choice of material.
1. Weroca Kartonagen GmbH & Co. KG has unlimited liability - irrespective of the legal grounds - in case of breach of warranty or injury to life, body or health. The same shall apply to intent and gross negligence on the part of executive bodies and executives. The liability for simple vicarious agents (§ 278 BGB) is, as far as legally permissible, excluded.
2. Weroca Kartonagen GmbH & Co. KG shall be liable for slight negligence subject to the provision in para. 1 only if cardinal obligations are violated. Cardinal obligations are such obligations the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely.
3 In cases of a material breach of contractual obligations caused by negligence only, the amount of damages shall be limited to the damages foreseeable and typical for the contract at the time of conclusion of the contract. Compensation for damages due to loss of production, consequential damage and/or loss of profit is excluded in cases of simple negligence. This limitation of liability applies accordingly to the conduct of the vicarious agents and assistants of Weroca Kartonagen GmbH & Co. KG.
4. Except in cases of intent, gross negligence and injury to life, body or health, the damage is limited in total to the value of 50 % of the order value per damaging event.
5. The liability of Weroca Kartonagen GmbH & Co. KG shall be limited, subject to paragraphs 1 to 3, to a maximum of 5 % of the agreed net price for damages incurred by the Buyer due to the delay. The parties to the contract reserve the right to claim further damages and to prove that the damages incurred were less.
6. If the delivery items are used items, all claims for material defects are excluded. This exclusion shall not apply to claims for damages, in case of gross negligence or intent, in case of injury to life, body or health for which Weroca Kartonagen GmbH & Co. KG, its executive employees or vicarious agents for which Weroca Kartonagen GmbH & Co.
XIV Statute of limitations
1 The limitation period for the purchaser's claims for defects is 12 months, in deviation from § 438 para. 1 no. 3 BGB, and begins with the delivery of the goods. The period of limitation also begins with default of acceptance by the purchaser. If acceptance has been agreed, the limitation period shall commence upon acceptance. This period also applies to claims in tort based on a defect in the goods. The period of limitation shall not recommence through subsequent performance. In cases pursuant to Section XIII. 1. the statutory limitation period shall apply instead.
2. If the goods are an object which has been used in accordance with its usual purpose for a building and has caused its defectiveness (building material), the statutory limitation period shall be five years from delivery (§ 438 para. 1. no. 2 BGB). Other statutory special regulations on the statute of limitations remain unaffected.
3. The aforementioned limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages of the Purchaser which are based on a defect of the goods, unless the application of the regular limitation period (§§ 195, 199 BGB) will lead to a shorter limitation period in individual cases.
4. If Weroca Kartonagen GmbH & Co. KG has expressly granted a guarantee as to quality, the claims under this guarantee as to quality shall become statute-barred within 2 years. If Weroca Kartonagen GmbH & Co. KG has granted a guarantee of durability, the claims arising therefrom shall become statute-barred upon expiry of the period for which the guarantee of durability was granted.
5. Negotiations concerning claims for defects of quality or other claims for damages are only pending if the parties have declared that they are negotiating such claims.
XV. reservation of title
1. The delivered goods remain the property of Weroca Kartonagen GmbH & Co. KG.
2. In addition, Weroca Kartonagen GmbH & Co. KG shall remain the owner of the delivered goods until full payment of all claims arising from the business relationship between the Buyer and Weroca Kartonagen GmbH & Co. KG.
3. The Buyer shall be obliged to handle the goods subject to retention of title (hereinafter also referred to as "Reserved Goods") with care for the duration of the retention of title. In particular, the Customer is obliged to insure the Goods at its own expense against fire, water damage and theft at replacement value. The customer assigns to Weroca Kartonagen GmbH & Co. KG all claims for compensation under this insurance. Weroca Kartonagen GmbH & Co. KG hereby accepts the assignment. If such assignment is not permitted, the Buyer hereby irrevocably instructs its insurer to make any payments only to Weroca Kartonagen GmbH & Co. KG only. Any further claims of Weroca Kartonagen GmbH & Co. KG shall remain unaffected. The Purchaser shall pay Weroca Kartonagen GmbH & Co. KG upon request to furnish proof of the conclusion of insurance.
4. The goods subject to retention of title may not be pledged to third parties or transferred by way of security before full payment of the secured claim. The customer shall notify Weroca Kartonagen GmbH & Co. KG without undue delay in writing if an application for the institution of insolvency proceedings is filed or if access by third parties (e.g. attachments) to Weroca Kartonagen GmbH & Co. KG's goods are seized by third parties (e.g. attachments).
5. If the reserved goods are combined with other goods belonging to Weroca Kartonagen GmbH & Co. KG with other goods which do not belong to Weroca Kartonagen GmbH & Co. KG shall acquire co-ownership in the uniform object in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other objects at the time of such combination. If the Reserved Goods are combined with other goods in such a way that the Buyer's goods are to be regarded as the main goods, the Buyer assigns to Weroca Kartonagen GmbH & Co. KG already now on a pro rata basis co-ownership of such object. Weroca Kartonagen GmbH & Co. KG accepts this transfer. The provisions of this clause XV.5. shall apply accordingly if the reserved goods are mixed or processed with other goods.
6. The Buyer is revocably entitled to sell the reserved goods in the ordinary course of business. The customer may not, without the consent of Weroca Kartonagen GmbH & Co. KG, the Buyer shall not be entitled to pledge the reserved goods, to assign them as security or to make any other arrangements which may affect the property of Weroca Kartonagen GmbH & Co. KG or to make any other dispositions jeopardizing the property of Weroca Kartonagen GmbH & Co. In case of seizure or other interventions by third parties, the Buyer shall notify Weroca Kartonagen GmbH & Co. KG immediately in writing and to provide all necessary information, to inform the third party of the property rights of Weroca Kartonagen GmbH & Co. KG and to participate in the measures of Weroca Kartonagen GmbH & Co. KG's measures to protect the goods subject to reservation of title.
7. The Buyer hereby assigns to Weroca Kartonagen GmbH & Co. KG the claims arising from the resale of the reserved goods in the amount of the invoice amount including value added tax with all ancillary rights. KG. Weroca Kartonagen GmbH & Co. KG accepts this assignment already now. If the reserved goods are resold together with other goods not owned by Weroca Kartonagen GmbH & Co. KG, the claim arising from the resale shall be assigned in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other goods sold. If such assignment is not permitted, the Customer hereby irrevocably instructs the garnishee to make any payments only to Weroca Kartonagen GmbH & Co. KG only.
8. The Buyer is revocably authorized to assign the goods sold to Weroca Kartonagen GmbH & Co. KG in trust for Weroca Kartonagen GmbH & Co. KG in its own name. The right of Weroca Kartonagen GmbH & Co. KG to collect such claims itself shall not be affected thereby. However, Weroca Kartonagen GmbH & Co. KG shall not assert the claims itself and shall not revoke the direct debit authorization as long as the Customer has fulfilled its payment obligations duly complies. If, however, the Buyer acts in breach of contract - in particular in case of default in payment - he shall notify the Supplier of the assigned claims and the respective debtors, inform the respective debtors of the assignment and notify Weroca Kartonagen GmbH & Co. KG all documents and information required by Weroca Kartonagen GmbH & Co. KG requires for the assertion of the claims.
9. Weroca Kartonagen GmbH & Co. KG may revoke the Customer's right to resell the goods and the authorization to collect the claims if the Customer has not fulfilled its payment obligations towards Weroca Kartonagen GmbH & Co. KG does not properly fulfil its payment obligations towards Weroca Kartonagen GmbH & Co. KG, defaults in payment, ceases to make payments or if insolvency proceedings are applied for against the assets of the Customer.
10. Weroca Kartonagen GmbH & Co. KG shall, upon the Purchaser's request, be obliged to release existing securities to the extent that the realizable value of the securities, taking into account customary bank valuation discounts, exceeds the claims of Weroca Kartonagen GmbH & Co. KG's claims from the business relationship with the Purchaser by more than 10 %. The choice of the securities to be released shall be incumbent on Weroca Kartonagen GmbH & Co. KG.
11. If the Buyer makes payments to Weroca Kartonagen GmbH & Co. KG twice within a period of 6 months and/or if the Customer is insolvent and/or its insolvency becomes apparent on the basis of objective criteria, Weroca Kartonagen GmbH & Co. KG shall be entitled to demand the return of the delivered goods and, in the event of resale, to demand the return of the goods delivered to Weroca Kartonagen GmbH & Co. KG directly against the Buyer's customer. The demand for return shall not at the same time include a declaration of withdrawal from the contract, Weroca Kartonagen GmbH & Co. KG is rather entitled to demand the return of the goods only and to reserve the right of rescission.
12. In case of deliveries of goods to other jurisdictions in which the retention of title under this clause XV. is not legally effective, the Buyer shall grant Weroca Kartonagen GmbH & Co. KG hereby grants a corresponding security interest. If further measures are required for this purpose, the Buyer shall do everything to protect Weroca Kartonagen GmbH & Co. KG such security interest without delay. The Customer shall cooperate in all measures which are necessary and beneficial for the effectiveness and enforceability of such security interest.
1 The Customer shall be obliged to pay all costs incurred by him through Weroca Kartonagen GmbH & Co. KG, which are designated as confidential or which are recognisable as business or trade secrets under the other circumstances, and to neither record, pass on nor use them.
2. The customer shall ensure through suitable contractual agreements with the employees and agents working for him that they too refrain for an unlimited period from any own exploitation, disclosure or unauthorised recording of such business and trade secrets.
XVII Applicable law; place of jurisdiction
1. The legal relations of the Customer with Weroca Kartonagen GmbH & Co. KG shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction for all disputes arising out of the business relationship shall be the registered office of
Weroca Kartonagen GmbH & Co. KG shall also be entitled to bring an action at the place of the Purchaser's registered office as well as at any other admissible place of jurisdiction.
1 The transfer of rights and obligations of the Customer to third parties is only permitted with the written consent of Weroca Kartonagen GmbH & Co. KG.
2. Place of performance for all services to be rendered by the Buyer and Weroca Kartonagen GmbH & Co. KG shall be the registered office of Weroca Kartonagen GmbH & Co. KG, unless otherwise agreed.
3. Amendments and supplements to these General Terms and Conditions shall be in writing. This shall also apply to this written form requirement. The validity of oral collateral agreements made after the conclusion of the contract which do not concern the provisions of these GTC shall not be affected by this requirement. Should one of the above provisions be or become invalid or unenforceable in whole or in part, the validity of the GTC and the contract as a whole shall not be affected. The parties are obliged to replace the invalid or unenforceable provision with a provision that is as similar as possible in economic terms, taking into account the interests of both parties, from the beginning of the invalidity or unenforceability. The same applies to loopholes in the regulations.