GENERAL TERMS AND CONDITIONS OF SALE FOR USE VIS-À-VIS CONTRACTORS
General Terms and Conditions of Sale
of Packex GmbH,
Status July 2019 - Version as of 11.07.2019
1. scope of application
1.1 The following General Terms and Conditions of Sale (hereinafter only referred to as Terms and Conditions) shall apply exclusively to all - including future - deliveries to the customers named in Clause 1.2, unless otherwise agreed. The customer's terms and conditions 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 of the German Civil Code (BGB), 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 Shop").
2 Registration, product configuration, conclusion of contract, content of contract
2.1 In order to be able to order in our online shop, the interested party must first register once as a customer. By registering, the customer confirms that he/she is acting as an entrepreneur and at the same time agrees to the validity of these terms and conditions and the data protection declaration. When placing an order, the customer's consent to the validity of these terms and conditions and the data protection declaration in the respective valid version is given again.
2.2 Our offers are non-binding. The presentation of the products in the online shop does not represent a legally binding offer, but a non-binding online catalogue. In order to order a product, the customer must log in to the online shop with his access data and create a product. For this purpose, the customer can select from the different packaging types and then define formats, materials, order quantities and shipping methods as well as upload his print data and thus configure an individual product (hereinafter: "product"). This is stored in the virtual warehouse of the online shop. There the customer can view, change or delete the product in his individual product list.
2.3 The customer can order his product in the desired quantity immediately after configuration or by selecting it in the virtual warehouse. The customer can correct his entries at any time before sending a binding order by overwriting the entries in the order overview. Before submitting the order, the customer sees a summary overview ("Place Order") of the product to be ordered, the reference details entered, the product price (determined individually on the basis of the customer's entries) and his or her stored billing and delivery address. By clicking the button "Order with costs" at the end of the overview, the customer places a binding order. Every order is permanently traceable under the menu item Orders. Subsequent changes can only be made within a voluntarily granted and at any time revocable period of 2 hours from submission of the order as a cancellation and modified new order. To do so, use the corresponding button in the order under the menu item "Orders". After expiry of the aforementioned period, the binding release for production by the customer shall be deemed to have been granted.
2.4 Unless otherwise stated in the order, the customer is bound to his order for a period of 1 working day from receipt by us. The contract is concluded if we confirm the order electronically or deliver the ordered product within this period.
2.5 In the case of orders placed via the online shop (cf. Section 2.1), we shall confirm receipt of the customer's order to the customer 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 verification, the customer will receive an electronic order confirmation.
2.6 Verbal or telephone subsidiary agreements or promises by our employees which go beyond the content of the written contract or which amend these terms and conditions to our disadvantage shall only be effective after written confirmation.
2.7 Our illustrations, drawings, colour, 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.
2.8 Our product descriptions do not constitute guarantees within the meaning of § 443 BGB.
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 of Sale 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 "Orders" menu item of our online shop.
3.2 The contractual language is German.
4. print data, duty to check
4.1 Bindingly ordered products shall be manufactured exclusively with the inclusion of the print data uploaded by the customer in relation to the product. The print data must be uploaded in the file format specified in the order process and with correct colour designations. In case of deviating file format or colour designations, an error-free product is not guaranteed.
4.2 The customer must ensure the correctness of the supplied print data before uploading. We shall only check the print data for their technical printability; we shall not carry out any further checks, 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 shall 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.
4.3 The customer confirms 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 obliged to check whether the conclusion of a commission processing contract pursuant to Art. 28 (3) DSGVO is necessary in connection with the manufacture of his product by us. The customer will contact us before placing a binding order in order to conclude such a commission processing contract.
4.4 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.
5. nature of the goods, affixing of markings
5.1 A specific quality of the goods delivered by us is only owed if we expressly promise specific quality features 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 goods or the packaged goods that are based on direct contact without an express written agreement.
5.2 The customer is obliged to inspect the goods before use with regard to their suitability for the purpose for which they are intended. All points of complaint identified during these inspections must be notified to us in writing without delay. If the customer does not comply with these obligations, the goods shall be deemed to be in conformity with the contract.
5.3 We shall be entitled to affix our company, our company logo or our identification number to the goods manufactured by us in an appropriate form that does not affect the design of the goods in a relevant manner.
6.1 Unless otherwise stated, our prices are net in Euro, duty unpaid, including costs for standard packaging and shipping (Incoterms® 2010 DAP) plus statutory VAT. Any additional costs incurred shall be shown separately in the order confirmation and shall be borne by the customer.
7 Payment, terms of payment
7.1 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.
7.2 In the event of 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.
7.3 In the event of default in payment, we shall charge interest at a rate of 9 percentage points above the base rate, but at least 10%.
7.4 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 is only entitled to exercise the right of retention insofar as his counterclaim is based on the same contractual relationship.
8 Delivery, delivery time and transfer of risk
8.1 Deliveries shall be made in accordance with Incoterms® 2010 DAP exclusively to delivery addresses within the EU/EEA in compliance with the delivery time in accordance with Sections 8.6 - 8.10. Deliveries outside this economic area shall require a special agreement without binding delivery dates.
8.2 Delivery shall be made to the delivery address specified by the Client.
8.3 The risk shall pass to the customer as soon as the order has been delivered to the customer by the commissioned courier express parcel service provider.
8.4 Partial deliveries are permissible to a reasonable extent.
8.5 During product configuration, different production and delivery times can be selected.
8.6 The delivery period begins with the receipt of the order confirmation.
8.7 If the prerequisites according to section 4 are fulfilled by 12.00 noon CET on the day of receipt, the delivery period shall begin on the same day, provided it is a working day. Otherwise, the delivery period shall only commence from the following working day.
8.8 The indication of the delivery time in working days includes the working days Monday to Friday, with the exception of public holidays.
8.9 If we confirm an order before we have been provided with the correct print data (cf. Section 4), the delivery period shall commence at the time we receive the print data in accordance with the contract, i.e. in accordance with the technical specifications and the ordered product. We are 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.
8.10. In the event of a delay in delivery, our liability in the case of simple negligence shall be limited to 0.5% per full week of 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 section 11 shall not be affected thereby.
9 Force majeure
9.1 Unforeseen, unavoidable events for which we are not responsible (e.g. operational disruptions due to force majeure, strikes or lockouts, difficulties in the procurement of materials or energy, transport delays, shortages of labour, energy or raw materials, measures taken by public authorities, as well as difficulties in obtaining permits, in particular import or export licences) shall extend the delivery period by the duration of the disruption and its effects. This shall also apply if the obstacles occur at our suppliers or during an existing delay.
9.2 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 9.1.
10 Liability for defects
10.1 The printing and processing of the folding boxes produced shall be carried out in accordance with internationally recognised printing standards in 7-colour printing and the manufacturing description on our website. The reproduction of colours, texts, barcodes and the design shall be in accordance with the binding data uploaded and entered for the product. Production in conformity with the contract in accordance with these standards, manufacturing descriptions and data shall not constitute grounds for complaints.
10.2 The customer may only assert any rights due to material defects if he has properly fulfilled his inspection and complaint obligations in accordance with § 377 HGB (German Commercial Code) with regard to the delivered goods. The customer shall inspect the delivered goods for completeness and freedom from defects without delay, as a rule within 3 working days of receipt. All defects are to be reported to us in writing without delay. If the buyer does not comply with these obligations, the goods shall be deemed to be in conformity with the contract, unless the defect was not recognisable during the inspection.
10.3 Claims by the customer for defects due to damaged outer packaging require that the customer proves the existence of the defect at the time of the transfer of risk.
10.4 The customer shall be obliged to give notice of a defect which is not recognisable immediately after its discovery, as a rule within 3 working days. If he does not comply with this obligation, the goods shall be deemed to be in conformity with the contract.
10.5 Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality or only insignificant impairment of usability.
10.6 Claims for defects by the customer require that the customer proves the existence of the cause of the defect at the time before the transfer of risk.
10.7 Our liability is excluded for defects that are based on improper storage and/or processing of the goods at the customer's premises.
10.8 The infringement of third party rights shall only constitute a defect if these property rights exist in the EU/EEA.
10.9 Any declarations of conformity, quality agreements or specifications issued by us do not constitute guarantees and do not establish any liability irrespective of fault. In particular, they do not release the customer from his obligation to check the goods for their suitability for the respective packaged goods before processing - also by carrying out appropriate analyses.
10.10. In the event of timely and justified notices of defects, we shall, at our discretion, deliver a replacement or repair the goods. Should the subsequent performance fail, the customer may demand a reduction of the price or - in the case of significant defects - withdraw from the contract. In the event of failure of the subsequent performance, the customer shall also be entitled to demand damages instead of performance in accordance with clause 12.
10.11. Costs of supplementary performance arising from the fact that the purchased item was taken to a place other than the customer's commercial establishment after delivery shall not be borne.
10.12. Insofar as the defect has been caused by an essential third-party product, we are entitled to limit our liability initially to the assignment of the defect liability claims and rights to which we are entitled against the supplier of this third-party product, unless satisfaction from the assigned claim or right fails or cannot be enforced for other reasons.
10.13. The limitation period for claims for defects shall be determined in accordance with clause 12.
11. retention of title
11.1 We reserve title to the delivered goods until receipt of all payments and irrevocable crediting of accepted cheques and bills of exchange from the business relationship with the customer. If a current account relationship exists, the retention of title shall extend to the recognised balance.
11.2 The customer is entitled to resell the reserved goods in the ordinary course of business; however, he hereby assigns to us in advance all claims in the amount of the net invoice value of the reserved goods which accrue to him from the resale.
11.3 The customer is entitled to collect the claims assigned to us as long as he meets his payment obligations from the proceeds collected.
11.4 If the customer no longer meets his payment obligations, we may revoke the authorisation to resell and demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs his debtors of the assignment.
The taking back of goods subject to retention of title does not constitute a withdrawal from the contract. If we declare withdrawal, we shall be entitled to sell the goods on the open market.
11.5 We must be informed immediately of any access by third parties to the goods subject to retention of title. The customer shall bear any costs arising from the defence against such seizure, insofar as they cannot be recovered from the third party.
11.6 If the value of the securities exceeds our claims by more than 10 %, we shall release our securities to this extent at our discretion at the customer's request.
12 General liability
12.1 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 guarantee, we shall be liable in accordance with any guarantee provisions.
12.2 In the event of simple negligence, we shall only be liable in the event of a breach of a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer regularly relies and may rely, and - unless otherwise provided for in section 7.4 for damage caused by delay - limited to compensation for the foreseeable and typical damage. Our liability is excluded in all other cases.
12.3 Claims of the customer due to defects shall become statute-barred after 12 months from the transfer of risk, other claims after 12 months from the statutory commencement of the limitation period. In deviation from p. 1 of this clause 12.3, 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, limb or health and due to intentional or grossly negligent breach of obligations, the statutory limitation provisions shall apply.
13 Intellectual property, industrial property rights, ownership of working materials
13.1 The intellectual property or industrial property rights to drafts, templates, sketches, samples, digital data, etc. developed by us (hereinafter: Working Materials) are exclusively ours. (hereinafter: working materials) are exclusively ours. The customer may not use these working materials without prior express written agreement in which an appropriate fee for use is specified.
13.2 The customer is responsible for ensuring that the goods produced by us according to his specifications are free of third party rights, in particular that the print data and designs provided are free of 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.
13.3 Working materials which are necessary for the production of the goods and which have been produced by us remain our property, even if the customer has contributed financially to the production costs. There is no obligation to surrender them.
13.4 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.
14.1 We shall fulfil the obligations incumbent on us within the framework of the Packaging Act with regard to transport packaging. However, unless otherwise notified in writing by the customer, we assume that the customer will dispose of the packaging free of charge at the customer's location. After written notification, we shall take back our transport packaging at our place of business during normal business hours; the customer shall bear the costs of the return shipment. The packaging must be returned clean, free of foreign matter and sorted by type.
15 Place of performance, place of jurisdiction, choice of law, data protection
15.1 The place of performance for all services is our registered office.
15.2 The exclusive place of jurisdiction for all disputes arising from or in connection with the delivery contract shall be our registered office. However, we are also entitled to take legal action at the customer's registered office.
15.3 German law shall apply. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.