General terms and conditions
General Terms and Conditions of PackEx GmbH
(as of August 2023)
1. scope of application and subject matter of the contract
1.1 The following General Terms and Conditions (hereinafter referred to only as "Terms and Conditions") shall apply exclusively to all - also future - deliveries and services (hereinafter referred to only as "Deliveries") to the customers named in Section 1.2, unless otherwise agreed. Terms and conditions of the customer shall not become part of the contract, even if reference is made to them in business correspondence and we do not expressly object to them.
1.2 These Terms and Conditions shall only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law (hereinafter referred to as "Customers").
1.3 These terms and conditions also apply to contracts concluded online via our website https://app.packex.com (hereinafter: "Online Portal").
1.4 The subject matter of the contract is the delivery of packaging by PackEx according to customer-specific requirements as well as additional services, such as the creation or processing of design or print data as well as fulfillment.
1.5 Consulting services for the customer shall only be the subject of our contract if the provision thereof has been expressly agreed in writing. Our consulting services are then based exclusively on empirical values from our own company and extend exclusively to the nature of our products as well as the intended use communicated by the customer in writing.
2. registration, product configuration, conclusion of contract and content of contract
2.2 Non-registered interested parties as well as logged-out customers can view the product catalog in our online portal. The presentation of the products in the online portal does not constitute a legally binding offer, but a non-binding online catalog, which serves as the basis for a concrete offer by the customer to conclude a contract. The customer can select from the different packaging types and then define formats, materials, order quantities, service options (e.g. data preparation, FSC certification, Braille, QS test certificate) and shipping methods as well as upload his print data and thus configure an individual product (hereinafter: "Product"). Customers can receive a non-binding offer by e-mail. To be able to order the configured product, the interested party must register or the customer must log in to the online portal with his access data. The product is saved under "My products" in the online portal. There, the customer can view, change or delete the product in his individual product list and upload print data via the print data manager.
2.3 The customer can order the individualized product in the logged-in state immediately after the configuration or by selecting it under "My products" in the desired quantity. Products to be ordered are placed in the shopping cart. In the checkout process, the customer receives a detailed product overview of the shopping cart and must enter the delivery and billing address, VAT ID, any reference information (for customer-internal purposes) and the desired payment method. The customer can correct his entries at any time in the checkout process using the edit function. In the last step "Check & Order", the customer receives a summary of the products to be ordered as well as the information stored in the checkout and the total price (determined individually based on the customer's entries) of the shopping cart. By clicking the button "Order" at the end of the overview, the customer places a binding order and receives an order confirmation in the portal as well as by e-mail. Under the menu item "My orders" each order is permanently traceable. Subsequent changes can only be made within a voluntarily granted and at any time revocable period of 1 hour from submission of the order as a cancellation and modified new order. For this purpose, the menu item "My orders" is to be used. After expiry of the aforementioned period, the binding release for production by the customer shall be deemed to have been granted.
2.4 The customer has no possibility to cancel the order after the expiry of the cancellation period in clause 2.3 and is now obliged to accept the delivery and payment.
2.5 Unless otherwise stated in the order, the customer is bound to his order for a period of 3 working days from receipt by us. The contract is concluded if we confirm the order electronically or deliver the ordered product within this period.
2.6 In the case of orders placed via the online portal (cf. Section 2.1), we shall confirm receipt of the customer's order to the customer by means of an order confirmation in the online portal and additionally by e-mail. This order receipt confirmation does not constitute an acceptance of the customer's order, but is only intended to inform the customer that we have received the order. After internal review, the customer receives an electronic order confirmation. We are not obliged to accept the customer's order.
2.7 Verbal or telephone collateral agreements or promises by our employees that go beyond the content of the written contract or change these terms to our disadvantage shall only be effective after written confirmation.
2.8 Our illustrations, drawings, color, weight and dimension specifications are only approximate values unless they a) have been expressly designated by us as binding, b) are objectively essential or c) have been designated by the customer as essential for him.
2.9 Our product descriptions do not constitute guarantees within the meaning of § 443 BGB (German Civil Code), unless they are expressly designated as a guarantee.
2.10. We are entitled to use subcontractors for our deliveries in compliance with PackEx production standards. The subcontractors will be carefully selected.
3. contract text storage and contract language
3.1 We store contract texts and send our customers the respective order data by e-mail. The General Terms and Conditions can also be viewed at any time on the Internet at https://www.packex.com/avb. The list of open orders and previous orders can be viewed by customers in the menu item "My Orders" of our online portal.
3.2 The contractual language is German.
4. print data and duty to check
4.1 The print data submitted by the customer must be created exclusively in accordance with our current guidelines (e.g. print data, Braille). These guidelines are provided to the customer when uploading the print data and can also be called up by the customer on a daily basis at https://packex.com/d/druckdaten-leitfaden/.
4.2 Orders placed by the Customer shall be produced exclusively with the inclusion of the print data uploaded by the Customer in relation to the product. The print data shall be uploaded in the file format specified in the order process and with correct color designations. In case of deviating file format or color designations, an error-free product is not guaranteed.
4.3 The customer must ensure the correctness of the supplied print data before uploading. In the free online preflight check (Basic) or a chargeable, extended manual print data check (Professional), the print data shall be checked exclusively for their technical printability; there shall be no further checking, in particular of the content, the graphic presentation or the lawful use of design elements used, such as logos, brands or company trademarks. If the data does not permit automated further processing, the customer will receive a corresponding error message. Within the scope of his contractual duty to cooperate, the customer is obliged to upload error-free print data or to have the order printed with the objectionable data at his own risk or to cancel the order with costs.
4.4 In order to process the Customer's order, we are free to adapt the design data in the Customer's file to the respective current PackEx design standard, provided that the design is not impaired in terms of design, dimensions and function. The customer agrees to such editing of the design data by placing the order.
4.5 The customer assures with the order that the print data uploaded by him do not contain any personal data within the meaning of Art. 4 (1) DSGVO. The customer shall be responsible for checking whether the conclusion of a commission processing agreement pursuant to Art. 28 (3) DSGVO is necessary in connection with the manufacture of its product by us. The customer will contact us prior to placing an order in order to conclude such a commissioned processing contract.
4.6 The customer assures with the order that he has all the necessary rights (e.g. copyrights, trademark rights, etc.) to the content shown or that he is the owner of the rights himself. The customer shall be liable to third parties if the rights of third parties, in particular copyrights or trademark rights, are infringed by the execution of his order. We shall not be obliged to check for the existence of third-party rights in the course of the performance of our services. The customer shall immediately indemnify us against all claims of third parties due to such an infringement of rights.
4.7 The approval of the print data together with the initiation of the order shall be carried out exclusively by the Customer. The risk of any product defects as a result of incorrect print data or print data that has not been checked for correctness shall be borne solely by the customer.
4.8 Unless expressly agreed with the Customer, there shall be no obligation to surrender intermediate products, data or tools created for the manufacture of the final product owed.
4.9 Any data and data carriers shall be archived or stored by us beyond the time of handover of the end product to the customer or its vicarious agents only upon express agreement and against special remuneration.
5. condition of the products and application of markings
5.1 A specific quality of our delivery shall only be owed if we expressly promise specific quality characteristics in writing. Unless otherwise agreed in the contract, the suitability of the packaging material for direct contact with foodstuffs is not owed. We therefore accept no liability for impairments to the products or the packaged goods that are based on direct contact with foodstuffs without an express written agreement.
5.2 Necessary migration tests for packaging for food products, including secondary packaging, are expressly the responsibility of the customer or distributor. We do not assume any liability for this.
5.3 The customer is obliged to examine the products before use with regard to their suitability for the intended purpose. All points of complaint identified during these inspections must be notified to us in writing without delay.
5.4 The customer is responsible for ensuring that all legally required, country-specific markings have been applied to the packaging in its intended area of use. We do not owe any inspection in this respect. In particular, the recycling code, country-specific packaging labeling or a UKCA labeling come into consideration here, which must be taken into account by the customer if necessary.
5.5 We shall be entitled to affix our company, our company logo or our identification number to the products manufactured by us in an appropriate form that does not significantly impair the design of the products.
6. FSC certification
6.1 If the customer wishes to use Forest Stewardship Council (FSC) certification, the customer is responsible for the correct use and incorporation of the FSC logo on the product in accordance with the current specifications on our website and the FSC website.
6.2 If we make our FSC logo available to the customer, this may only be used for the product configured for this purpose for the expressly agreed purpose and not improperly.
6.3 The customer must inform us in writing in good time if he wishes to use a different FSC Logo on the product than the FSC Logo (additionally) provided by us.
6.4 The customer shall be liable for any breach of the obligations under clauses 6.1. to 6.3. and shall immediately indemnify us against all claims of third parties based on such breach.
7.1 Unless otherwise stated, our prices within the EU/EEA are net in Euro, duty unpaid, including costs for standard packaging and shipping (Incoterms® 2020 DAP agreed place of delivery) plus statutory VAT. Any additional costs incurred shall be shown separately in the order confirmation and shall be borne by the customer.
Outside the economic area of the EU/EEA, our prices are FCA Werk PackEx (Incoterms® 2020), net in Euro plus statutory VAT, unless otherwise stated, even if we separately organize transport for the customer.
7.2 We shall only insure the products to be shipped upon express agreement and at the expense of the customer.
8. terms of payment
8.1 Unless otherwise agreed, payments shall be transferred to our account within 14 days net from the invoice date without any deductions and free of charge. Receipt of payment shall be decisive for the timeliness of payment.
8.2 In the event of substantial advance payments or justified indications of a risk of non-payment, we reserve the right to deliver only after receipt of the purchase price (reservation of advance payment). If we make use of the reservation of advance payment, we will inform the customer immediately. In this case, the delivery period begins with payment of the full purchase price.
8.3 In the event of default in payment, we shall charge interest at a rate of 9 percentage points above the base interest rate, but at least 10%.
8.4 Subsequent changes at the instigation of the customer including the additional costs caused thereby, e.g. machine downtime, renewed set-up, weekend work, etc. shall be charged to the customer.
8.5 In the case of delivery periods of more than 4 weeks, we reserve the right to increase the agreed prices accordingly, insofar as significant changes in the valid raw material, material, energy, salary costs or costs for public charges have occurred after conclusion of the contract and we are not responsible for these changes. In particular, a change in the valid paper prices (daily prices) shall be taken into consideration. A price increase will not be greater than 5%.
8.6 The customer may only offset or assert a right of retention insofar as its counterclaims are undisputed or have been legally established. Furthermore, the customer shall only be entitled to exercise the right of retention insofar as its counterclaim is based on the same contractual relationship.
8.7 If the customer is not prepared to pay in advance as agreed or to provide the agreed security, we shall be entitled to withdraw from these contracts after a reasonable period of grace and to claim damages for non-performance.
9 Delivery, delivery time and transfer of risk
9.1 Deliveries within the EU/EEA shall be made DAP agreed delivery address (Incoterms® 2020) and within the delivery times specified in the online portal. Delivery shall be made to the delivery address agreed with the customer.
9.2 Deliveries outside the economic area of the EU/EEA shall be made FCA Werk PackEx (Incoterms® 2020). Thus, the delivery deadline is met as soon as we have loaded the products onto the provided transport vehicle. This also applies if we separately organize the transport for the customer.
9.3 The risk shall pass to the customer within the EU/EEA in accordance with DAP (Incoterms® 2020). Outside the EU/EEA, the risk shall pass to the Customer in accordance with FCA (Incoterms® 2020).
9.4 Partial deliveries shall be permitted to a reasonable extent and may be invoiced separately.
9.5 The delivery period shall commence at the earliest upon receipt of the order confirmation.
9.6 If the prerequisites according to item 4 are fulfilled by 12.00 noon CET on the day of receipt, the delivery period shall commence on the same day, provided it is a working day. Otherwise, the delivery period shall not commence until the following working day.
9.7 The indication of the delivery time in working days includes the working days Monday to Friday, excluding holidays.
9.8 If we confirm an order before we have been provided with the correct print data, the delivery period shall commence at the time when we receive the print data in accordance with the contract, i.e. in accordance with the technical specifications and the ordered product. We shall be entitled to withdraw from the contract after the fruitless expiry of a reasonable grace period for the delivery of the missing and/or required print data. We expressly reserve the right to claim damages in this case.
9.9 In the event of a delay in delivery, our liability shall be limited in the case of simple negligence to 0.5% per full week of the delay, but in total to a maximum of 5% of the net invoice amount of the part of the delivery affected by the delay. The claim for damages in lieu of performance pursuant to Clause 13 shall not be affected thereby.
9.10. In the event of damage to or loss of the products during transport, an inventory should be taken immediately and we should be notified thereof. Claims arising from any transport damage must be asserted by the customer with the carrier without delay.
9.11. In the event of default in acceptance or other culpable breach of cooperation obligations on the part of the customer, we shall be entitled to compensation for the resulting damage, including any additional expenses. We reserve the right to assert further claims. In this case, the risk of accidental loss or accidental deterioration of the products shall pass to the customer at the time of the default in acceptance or other breach of cooperation obligations.
10. force majeure
10.1 Unforeseen, unavoidable events for which we are not responsible (e.g. pandemic, effects of war, operational disruptions due to force majeure, strikes or lockouts, difficulties in the procurement of materials or energy, transport delays, shortages of labor, energy or raw materials, measures taken by public authorities, as well as difficulties in obtaining permits, in particular import or export licenses) shall extend the delivery period by the duration of the disruption and its effects. This shall also apply if the hindrances occur at our sub-suppliers or during an existing delay.
10.2 If the impediment is not only of temporary duration, both contracting parties shall be entitled to withdraw from the contract. Claims for damages are excluded in the cases mentioned in clause 10.1.
11. liability for defects
11.1 The customer's claims for defects shall be subject to the condition that the customer has duly complied with its obligation to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB). Defects must be reported to us immediately and in writing.
11.2 The printing and processing of the manufactured packaging is carried out in accordance with internationally recognized processes. We apply suitable manufacturing processes here for each order of the customer. There is no claim to a specific manufacturing process of the customer, unless the manufacturing process was agreed in writing with the customer.
11.3 The reproduction of colors, texts, barcodes and the design shall be carried out according to the binding data uploaded and entered for the product. All true spot colors are converted or simulated in the 4- and 7-color process and subsequently produced. In case of color deviations within a tolerance of deltaE2000 smaller than 5, the products are in accordance with the contract. Furthermore, we apply mechanical creasing of the folding box exclusively at our own discretion; as standard, we perform material removal by laser, which ensures folding. This also applies to cut edges of all products, which can be produced by laser at our own discretion. Contractual production according to these standards, production descriptions and data does not constitute a reason for complaints.
11.4 In the case of reproductions in all manufacturing processes, insignificant deviations from the original cannot be objected to. The same applies to the comparison between other originals (e.g. proofs, press proofs) and the final product. Editions of the same artwork with different orders or at different times may also differ slightly.
11.5 Production-related material, color and processing variations, even outside tolerance limits, shall not constitute a defect, provided that the usability of the product is not impaired. With regard to our specifications on material weight or thickness, products with tolerances of up to +/- 5 % are in conformity with the contract, provided that the properties are consistent.
11.6 We would like to point out that our products will only retain their functionality during storage or further processing if the climatic conditions during processing and storage of the packaging materials at the customer's premises have been complied with (processing: 20 to 25 °C and 45 to 65 % relative humidity. Storage: 15 to 25 °C and 45 to 65 % relative humidity). The customer is also aware that processing of the products after prolonged storage may result in sensory impairments and external impairments, such as crease edge breakage and color changes, as well as technical impairments, such as poorer running properties, adhesiveness, color adhesion and flatness. If the customer causes the originally agreed call-off or delivery dates to be exceeded by more than 6 months, he accepts such signs of aging as a contractual condition of the products. PackEx may demand partial or total return of the delivery from the Customer in order to assess the defect. The costs for this shall be borne by PackEx.
11.7 Defects in a part of the delivered Products shall not entitle the Purchaser to complain about the entire delivery, unless the partial delivery is of no interest to the Purchaser.
11.8 Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality or in the case of only insignificant impairment of usability.
11.9 Excess or short deliveries of up to 5% of the ordered circulation cannot be objected to. The quantity actually delivered shall be invoiced.
11.10. Our liability is excluded for defects based on improper storage and/or processing of the products by the customer.
11.11. The infringement of third party rights shall only constitute a defect if these property rights exist in the EU/EEA.
11.12. Declarations of conformity, quality agreements or specifications issued by us, if any, do not constitute guarantees and do not establish any strict liability. In particular, they do not release the customer from its obligation to check the products for their suitability for the respective packaged goods before processing - also by carrying out appropriate analyses.
11.13. In the event of timely and justified notices of defect, we shall, at our discretion, deliver a replacement or repair the products. If we are not prepared or not in a position to remedy the defect/replace the delivery, if this is delayed beyond a reasonable period for reasons for which we are responsible, or if the remedy of the defect/replacement delivery fails in any other way, the customer shall be entitled - in the case of significant defects - to withdraw from the contract or to reduce the remuneration and to demand damages in lieu of performance in accordance with Clause 13.
11.14. Costs of supplementary performance incurred due to the fact that the purchased item was taken to a place other than the place of delivery agreed with the customer after delivery shall not be borne.
11.15. The limitation period for claims for defects shall be determined in accordance with Clause 13.
11.16. The notice of defects shall not release the Purchaser from its payment obligations.
12. retention of title
12.1 We retain title to the delivered products until all our claims against the customer arising from the business relationship, including future claims, including claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims have been included by us in a current account and the balance has been struck and acknowledged.
12.2 During the existence of the reservation of title, the customer is prohibited from pledging or assigning the products as security. Access by third parties to the goods subject to retention of title must be notified to us immediately. The customer shall bear any costs arising from the defense against such seizure, unless they can be recovered from the third party.
12.3 If our reserved goods are mixed, combined or processed with other items, this shall be done free of charge for us. In the event of processing, we shall acquire co-ownership of the new item in the ratio of the invoice value of our reserved goods to that of the other items at the time of the activity. If an item is to be regarded as the main item, we shall acquire co-ownership of the main item in the ratio of the value of our reserved goods to the total value of the same at the time of the activity. The customer shall store all items for us free of charge.
12.4 The reserved goods may only be resold by the customer in the ordinary course of business. The customer hereby assigns to us all claims in the amount of the gross final invoice amount, including all ancillary rights, which accrue to it against its customers from the resale of the goods subject to retention of title. We accept the assignment. The customer remains entitled to collect these claims as long as he fulfills his obligations towards us. If third parties have rights to the goods subject to retention of title, the customer's claim shall pass to us in the ratio of the value of our co-ownership share to the total value of the items. The customer shall immediately pay to us any amounts collected, insofar as our claims are due.
12.5 If the customer no longer meets its payment obligations, we may revoke the authorization to resell and reuse the goods and demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform its debtors of the assignment. The taking back of goods subject to retention of title does not constitute a withdrawal from the contract. After taking back the products, we shall be entitled to dispose of them.
13. general liability
13.1 We shall be liable in the event of intent or gross negligence, fraudulent concealment of defects, injury to life, limb or health or under the Product Liability Act in accordance with the law. In the event of an assumed warranty, we shall be liable in accordance with any warranty provisions.
13.2 In the event of simple negligence, we shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the customer regularly relies and may rely, and - unless otherwise provided for in Section 9.9 for damage caused by delay - limited to compensation for the foreseeable and typical damage. In all other cases our liability is excluded.
13.3 Claims of the customer due to defects shall become statute-barred after 12 months from the passing of risk, other claims after 12 months from the statutory commencement of the limitation period. Notwithstanding p. 1 of this clause 13.3, in the event of our liability due to the assumption of a guarantee, the guarantee provisions shall apply and in the event of fraudulent concealment of a defect as well as in the event of claims for damages under the Product Liability Act due to injury to life, body or health and due to intentional or grossly negligent breach of obligations, the statutory limitation provisions shall apply.
14 Intellectual property, industrial property rights, ownership of working materials
14.1 We shall be exclusively entitled to the intellectual property or industrial property rights to drafts, templates, sketches, samples, digital data, etc. developed by us (hereinafter: Working Materials). The customer may not use these working materials without prior express written agreement in which an appropriate usage fee is specified.
14.2 The customer shall be responsible for ensuring that the products produced by us according to its specifications are free from third party rights, in particular that the print data and designs provided are free from industrial property rights or copyrights which restrict or hinder the manufacture, distribution or marketing of the products. The customer shall indemnify us against any third party claims in this respect. We expressly reserve the right to assert further claims for reimbursement of costs and damages.
14.3 Working materials which are necessary for the manufacture of the products and which have been produced by us shall remain our property, even if the customer has contributed financially to the creation costs. There shall be no obligation to surrender them.
14.4 We shall only store working materials and data sets provided by the customer at the customer's risk. We shall only be liable for due diligence in our own affairs.
15. transport packaging
15.1 Unless we have agreed otherwise with the customer, at least in text form, it shall apply to the return of packaging pursuant to Section 15 of the German Packaging Act that the customer assumes our return obligations and ensures the return and proper and proper recycling of the packaging at its own expense. The customer shall also provide all reasonable cooperation so that we can meet our documentation obligations under the Packaging Act.
15.2 The customer shall indemnify us against all costs and damages arising from claims by third parties, in particular authorities, insofar as these are based on the fact that the customer has not or not properly performed such an act of cooperation or has not properly fulfilled the accepted obligation to take back the goods.
15.3 The Customer is aware that, as the distributor of our products as sales packaging, it may have further obligations under the Packaging Act, in particular to register in the packaging register.
16 Place of performance, place of jurisdiction, choice of law, data protection
16.1 Unless expressly agreed otherwise with the customer, the place of performance for all services shall be our registered office.
16.2 For all legal disputes arising from the contractual relationship as well as its creation and effectiveness, the competent local or regional court for our place of business in Worms shall be the place of jurisdiction, provided that our customer is a merchant. However, we shall also be entitled, at our discretion, to appeal to the local or regional court responsible for the customer's place of business.
16.3 German law shall apply. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.