General Conditions of Sale

Gebr. Dürrbeck Kunststoffe GmbH

1. Scope, Choice of Law l

1.1. The following conditions of sale govern our relationship in business dealings, apply exclusively, and any conditions of the customer that conflict or deviate from our conditions of sale shall not be recognised, unless we have expressly agreed to them in writing. Our conditions of sale also apply when we, being aware of conditions of the customer that conflict or deviate from our conditions of sale, make delivery to the customer unreservedly .

1.2. All matters that are agreed upon between us and the customer for the execution of the contract are written in our quote/order confirmation and in the General Conditions of Sale, and these are recorded by telefax or in text form (hereinafter "Contract Form").

1.3. Our conditions of sale also apply to all future transactions with the customer, without the need for the repeated inclusion of a reference to the validity of said conditions during a subsequent transaction with the customer.

1.4. For the contract and the entire legal relationship with the customer, the laws of the Swiss Confederation shall apply and exclude the UN Convention for the International Sale of Goods (CISG). This choice of law clause shall also apply to contracts executed between us and any German company.

2. Offer, Web Shop, Contract Conclusion, Contract Documents, Correspondence 

 

2.1. Our "Offers" - with the exception of the desired inclusion of these in the conditions of sale – are non-binding in the legal sense unless they are in exceptional cases expressly noted as a "binding offer" or in a comparable manner. Commonly, the customer’s order is represented by an offer that can be accepted by the customer within two weeks, and thus included in the contract. Otherwise, the offer lapses.


2.2. Offers in our webshop are not binding, except for where there is an express desire to include our conditions of sale as the basis of the customer's order. The customer may transfer the products in the web shop first to a non-binding cart, correct the entries there and delete any accidently-included products. Afterwards, customers can enter their personal information. Only after confirmation of the corporate details and acceptance of the conditions of sale by the customer can a binding offer be delivered. We will then send the customer a receipt of the order in a confirmation email, wherein there has yet to be acceptance of the contract on our part. After examination of the customer's order, we ship - usually within 2 working days - a pro forma invoice as an order confirmation, and this constitutes our acceptance of the contract. All order information is stored by us.
Contract language is German.

2.3. We reserve the ownership and copyright of illustrations, drawings, calculations and other documents requiring confidentiality. Before transfer of such to third parties, the customer requires our express consent in Contract Form. Upon a request on our part to the potential customer, any confidential documents and copies must be returned to us. The customer is also required to keep the contents of said documents and copies confidential.

2.4. The cancellation of a contract by the customer requires our explicit consent in Contract Form. We reserve the right, based on our consent to cancellation, the status of the work and current disposition, to impose a cancellation fee, which may include our loss of profit, of at least € 100.

3. Prices, Payment 

 

3.1. Unless the order confirmation states otherwise, our prices are “ex works” and are exclusive of packaging, transport, insurance, taxes and other incidental expenses. We reserve the right to adjust our prices accordingly if, after the conclusion of the contract, cost reductions or cost increases that we could not prevent despite diligent business conduct - in particular due to collective agreements or material price changes - occur. This change can be supported with documentation at the customer’s request.


3.2. VAT is not included in our prices. The invoice will show the statutory rate of VAT on the date of invoicing.

3.3. The application (deduction) of a discount requires a special agreement in Contract Form, wherein the date of invoice is imprinted, as is the receipt of payment.

3.4. Provided that the order confirmation does not state otherwise, the purchase price is due without deduction within 30 days from the printed date of the invoice. After this time point, a default interest rate of 8% above the base rate of the European Central Bank will be charged. If no invoice is provided upon delivery, the customer is required to inform us immediately. If the customer does not inform us, the above default interest rate is calculated from the 35th day following receipt of the delivery.

3.5. Charging and netting are allowed only if the customer’s counterclaims have been legally determined, are undisputed, or are acknowledged by us. In addition, the customer is only entitled to exercise a right of retention when his counterclaim is based on the same delivery. The assignment of claims by the customer from the contracts concluded with us is excluded.

3.6. All payments will be charged - even in cases of conflicting statements by the customer - first as to interest and costs, and then to the oldest receivables.

4. Delivery/Transfer of Risk/Sales Volumes

 

4.1. The delivery dates created from our internal forecasts (e.g., "ca next week") are always approximate and non-binding on the customer, unless this is expressly agreed in the Contract Form. For us to admit a deliver delay, the customer must first set a grace period that begins after a non-binding and agreed upon – or without any agreement – delivery date or after a reasonable delivery period.


4.2. Partial deliveries by us are permissible insofar as they show no unreasonable prejudicial interest in the performance of the contract for the customer.

4.3. We deliver “ex works” in Buttelstedt unless otherwise agreed in Contract Form. The risk of accidental loss and accidental deterioration of the goods passes to the customer after the goods are available for collection or, depending on an earlier event, the moment of the transfer of goods from the factory to the shipper. This rule applies even if we organise transport, take over the costs of transport, or perform the transportation via our own logistics services.

4.4. Production-related excess and short deliveries may result from the ordered amount applied in relation to our machine capacity or machine specification. It is permitted that unprinted goods be within 15% of the contract amount and printed goods within 20% of the contract amount. This is calculated as determined by us using a machine-based counter/weight-determined FAD. If the under-delivery is within the aforementioned tolerance range, the customer can also request the missing amount from us - due to a decreased production amount against custom calculation and a price increase based on a separate addendum – in the remaining production and delivery.

4.5. Expanding on Clause 4.4, for small orders up to a value of € 1,000, over-delivery by us to the extent of up to 25% is possible and must be accepted. The calculation is based on the delivered quantity as determined by us.

4.6. Packaging costs, in particular rental, wear and disposal fees for packaging material, like the cost of returning packaging material to us, are at the expense of the customer.

4.7. When there are subsequently-discovered counting discrepancies between amounts identified by us on the basis of the machine counter and the invoiced amounts within the meaning of Clause 4.4, sentence 2 and the actual delivery quantity, we or the customer can demand price adjustments based on proof of difference, a complimentary delivery due to decreased final production volume only against custom calculation, and a price increase according to a separate addendum agreement in Contract Form.

5. Delivery Quality/Tolerances/Condition

 

5.1. Agreements as to the quality and condition of our products are approximate and do not guarantee specific properties, unless this would have been agreed to in accordance with clause 5.2. The quality of our products depends on the available resources and can only be influenced and tested by us in a limited way. Raw material-related changes in the characteristics, qualities, or differences in colour and weight deviations are therefore only to be represented by us if they have been detected in the regular course of business, including through adequate and reasonable sampling tests. Prototypes and proofs are in principle to be considered non-binding illustrative material and are an approximate indication of their execution.

Deviations from the agreement on quality and condition, significant detriment to the quality and deviations from our brochures, sample supplies and patterns, which do not significantly impair the customer-specific function, do not constitute a deterioration in quality, and from this the customer cannot derive any rights.

5.2. The assurance of certain product characteristics or the assumption of guarantees requires an explicit and written agreement in any instance.

5.3. We do not guarantee the suitability of our products for a specific customer-created and I ntroduced purpose, unless this was expressly agreed to in writing by us.

5.4. To substantiate the preceding paragraphs we reserve, for technical reasons, the customary sector-specific fluctuations regarding material thickness (+/- 15%) and in terms of dimension a) = 150 mm wide (+/- 15%), b)> 150 mm to 500 mm in width (+/- 8%), and c)> 500 mm width up to 1,500 mm (+/- 5%). For larger widths to be produced, the allowable deviation is determined by the production dimension and merchantability. Fluctuations in this context are not eligible for the assertion of claims for damages, defect claims, indemnification or deduction from the agreed price.

5.5. In accordance with the preceding paragraphs of Clauses 4. and 5., if quantitatively less than 2% of the specific delivered lot are affected beyond the permitted tolerances of dimensions, volumes, weights, etc., the customer is not entitled, based also on the presence of other conditions, to assert claims for damages, defect claims, indemnification or deduction from the agreed price.

5.6. The customer shall not be able to derive any rights from us where printed products manufactured by us according to the paragraphs of Clause 5 have slight colour and register deviations, but have no decreased quality. We accept no responsibility for the durability of the inks used by us, particularly in the instance of interaction between our materials and the customers’ packaging equipment. We can, at the time of printing on the customer's product, at the request the customer for claims against the supplier, cede any priority to claims or assertion of claims. Also a lack of light fastness of the ink is not considered a quality defect. The print during the inline printing process (recycling symbol or green dot, etc.) is not considered performance content. In that regard, this cannot lead to a lack of print quality or print status.

5.7. In the case of films to be used in the food industry, we point out that the first layers of film rolls must always be removed by the customer prior to processing. In the case of needled films, we cannot completely rule out, despite all care taken during production, that needle residue is removed from the films supplied by us. The user of our films must therefore make sure that the product supplied by us is suitable for its intended use.
 

6. Samples and Drafts, Rights of Third Parties

 

6.1. If we make, at the customer's request, a sample or samples of a certain style to be used by us in the generation of later products, the samples and drafts are considered approximate for later production, unless otherwise agreed in writing. With the execution of the production order by the customer, the release of the (licensed by us) sample or draft is simultaneously made available for production.

6.2. The cost of manuscripts, drafts, marginal drawings, screens, original and rubber plates and impression cylinders, etc. manufactured by us are not included in the base price and are invoiced separately. We also reserve the right to refabricate worn printing plates without prior consultation and to provide to the customer an appropriate invoice. The storage obligation for these items shall expire if the customer does not enter into another order within one year of the last delivery.

6.3. If the execution of an order according to the customer's wishes violates the rights of third parties, the customer will be liable for all resulting obligations. The customer is obliged to release us from any third-party claims at the first possible juncture, as soon as the customer is made aware of such claims by us.

7. Packaging/Pallets

 

7.1. Transport packaging and all other types of packaging may not be returned, with the exception of pallets. The customer is required to arrange disposal of the packaging at their own cost.


7.2. H1 pallets are property of Gebr. Dürrbeck Kunststoffe GmbH. Should these not be returned or exchanged when requested, Gebr. Dürrbeck Kunststoffe GmbH is authorised to invoice the customer € 65 exclusive of VAT for each unreturned pallet.

7.3. Pallets remain our property and are provided on loan. We are entitled to charge a security deposit for each pallet sent out to customers, which will be credited upon the freight-free return of undamaged pallets.

8. Transport Damage/Material Defects/Warranty Obligation

 

8.1. The goods must be examined immediately upon receipt to check for damage from transit. The customer must make claims against the shipper in the case of damaged goods and must note this in detail on the shipping bill. Generalisations like "accepted with reservations" or similar language without precise description of the damage are not sufficient for this purpose.


8.2. The assertion of material defect rights by the customer presupposes that the customer immediately after receipt of the goods investigates and identifies defects immediately, which are recognisable with careful examination, but no later than three business days after delivery, and then describes and shows the error to us according to the Contract Form.
Compliance with the complaint deadline for the receipt of notice of defects by us within the aforementioned period will be decisive. The above provisions shall also apply to partial deliveries. The deadline to show us defects also applies during the warranty period for defects that are later discovered, although originally hidden from view. Defects that have to be determined by tearing, sewing, welding or colour testing are not considered hidden.
If the customer places a finished product of ours in storage, the above deadline comes into force upon receipt of an invoice, or in the case of partial delivery from receipt of the partial invoice, which is provided by us for the goods. The customer is granted the opportunity to examine the goods placed into stock from that date.
Failure to comply with the investigation and complaint period will void the warranty rights, including any in kind related compensation claims.

8.3 Alongside a timely complaint, we are only subject to a warranty obligation if we deem the defect to have occurred with malicious or gross negligence on the part of our institutions. This also applies to a claim for damages resulting from a defect as describe in Clause 9.

8.4. Claims arising during the warranty period due to material defects shall be limited to one year from delivery or notification of readiness for pick up, whichever is the earlier event, and – if in storage with us - upon receipt of the corresponding invoice/storage confirmation.

9. Liability, Limitation of Liability, Limitations

 

9.1. We shall be liable to the customer for damages, regardless of their legal basis, only when intent and gross negligence by our institution is present. As can be observed thereafter in principle, the liability for compensation is further limited to direct damages. As far as we can fulfil our obligations to protect our employees in contract with the customer, the liability for the aforementioned damages to unlawful intent is limited. Liability for loss of profit and loss of production is excluded.


9.2. In any case, liability for damages as a result of defective goods is limited to three times the amount of the scope of service of the affected defective delivery, unless our insurance covers any exceeding amount, in this case it is subject to the actual payment of our insurance up to the maximum liability cap.

9.3. The liabilities generally described in paragraphs 9.1. and 9.2., do not apply to injury to life, limb or health or the mandatory liability of the Product Liability Act.

9.4. As far as the liability for damages towards us is excluded or limited, this also applies with regard to the personal liability of our employees, workers, representatives and agents.

9.5. The limitation period for claims for damages is one year after knowledge by the wrongdoer and damage, unless longer limitation periods are prescribed by law.

10. Title Retention/Processing

 

10.1. We reserve title to the goods until receipt of all payments from the delivery contract. In the instance of certain actions by the customer, especially payment arrears, we are entitled to set a reasonable deadline after which we will take back the purchased goods. Should there be a continuous business relationship and a current account, we reserve the title to the goods until receipt of all payments from the existing current account with the customer are received. The retention refers to the acknowledged balance. If our security interest achieves a level of 120%, we, upon request, will release the excess portion.


10.2. The customer is entitled to resell the purchased goods on our behalf in the ordinary course of business until further notice; the customer assigns to us all claims against its customers - in the amount of our final invoice (i.e. including VAT) - which arise from the resale to its customers or third parties, irrespective of whether the purchased goods have been resold with or without processing. We accept this assignment. To collect on this claim, the customer is entitled to revocation even after the assignment. Our authority to collect the claim itself remains unaffected and the customer has to give us immediate notice of this.

10.3. The handling and processing of goods by the customer is always carried out in our name and on our behalf. If processing occurs that includes goods that were not produced by us, we maintain co-ownership of the final product in proportion to the materials supplied by us in relation to the other goods. The same applies if the goods are mixed with other items not belonging to us.

11. Jurisdiction/Place of Arbitration – Place of Fulfilment

 

For disputes arising from the contract or in connection therewith - no matter on what legal basis and including the evaluation of the validity of the contract - within the scope defined by clause 1. of these Conditions of Sale - including those therein defined choice of law - the following rules exclusively apply:


11.1. Disputes with an initial amount claimed or a comparable value in dispute of less than € 50,000 are to be made in proceedings before the courts of ordinary jurisdiction of the Federal Republic of Germany under exclusive territorial jurisdiction of the courts in Erfurt/Thuringia. During a legal dispute in which the expansion of the disputed amount is introduced, be it through a legally expanded increase in the disputed amount or by parallel or subsequently introduced further litigation of the same applicant, and results in exclusive total responsibility of the arbitral tribunal pursuant to paragraph 11.2, the cost of the initial process in front of the ordinary Court is to be borne by the plaintiff alone, unless otherwise decided by the arbitral award.

11.2. Disputes starting with an initial value of or more than € 50,000 are excluded from the ordinary courts and are subject to the following arbitration clause: such disputes are subject to initiation of arbitration proceedings as decided by the International Arbitration Rules of the Swiss Chambers of Commerce in accordance with the rules as amended. The arbitration venue shall be Berlin, Germany. The arbitration panel shall, when involving amounts from € 50,000 to € 350,000, consist of one arbitrator, and where higher amounts are in dispute, three arbitrators. The award shall be provided in each case with legal reasons and justifications solely on the basis of fairness are not sufficient. The arbitration shall be - subject to the provisions for supplementary arbitration - performed in a single hearing, with the arbitration award being adopted within six months of said hearing.

11.3. The place of performance and fulfilment of all obligations under the contract and the business relationship with the customer, including the payment obligations of the customer, is Buttelstedt/Thuringia.

12. Miscellaneous/Severability

 

12.1. We process and store the data of our customers during the ordering process and fulfil herewith our responsibility of notice thereof.


12.2. Should individual provisions of the contract with the customer, including these general terms and conditions, be wholly or partially invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by the court/arbitration court by a regulation that matches the commercial intent of the invalid provision as closely as possible.


 Current as of January 2015