General terms and conditions
Sales and delivery conditions
§ 1 Scope
- All deliveries are covered by the following sales and delivery conditions. These apply to all our deliveries, unless otherwise expressly agreed in writing.
- The customer’s business conditions only apply if expressly recognised in writing.
- Even if in individual cases our conditions are waived, our sales and delivery conditions do apply to subsequent business.
- Ancillary agreements must be made in writing.
- The relevant applicable provisions apply to the dispatch of sold goods.
§ 2 Conclusion of contract
- As a rule, all our offers are binding. If, in exceptional cases, they are not binding, a contract is concluded when the order is confirmed or has been delivered.
- All orders must include quantities, items, sizes, and quality grades.
- The order confirmation is considered to decisive with regard to the content of the order.
§ 3 Price
- The price is based on the price structures on the day the order is confirmed. In the case of unpredictable extraordinary cost increases, such as price increases by our suppliers or currency fluctuations, we are entitled to
pass on the price increase to the customer.
- Our prices are subject to deviating agreement “net ex works/warehouse”, i.e. without packaging, loading, insurance (especially transport insurance), customs duties and charges, transport costs and VAT. Value added tax will be calculated additionally in the applicable amount and shown separately.
§ 4 Delivery
- Binding delivery dates and deadlines must be in writing. Fixed transactions require special agreement.
- Delivery is subject to correct and timely self-delivery. Unpredictable, unavoidable, unsuitable or serious circumstances beyond the control of the Seller, which prevent or substantially impede delivery, release the Seller from the obligation to deliver for the duration of its effect and extend the delivery period accordingly. In the case of delays in delivery justified in this way, the Seller is obliged
to inform the buyer immediately after having taken note of it. The Seller is then entitled to a delivery period of up to 4 weeks for the delivery. After unsuccessful expiration of this grace period both parties can withdraw from the contract. Claims in this context are mutually exclusive except for the services received in return.
- The delivery is to be sent at the expense and risk of the recipient. The risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left the seller's warehouse for the purpose of dispatch, at the latest. If the shipment is made at the buyer's request on a specific date, the risk passes to the buyer
upon notification of readiness for dispatch.
- Transport insurance is only taken out by us on the express written instruction of the buyer, in their name and at their expense.
- Block orders (= call orders) require explicit agreement, as well as redistribution. Goods purchased on call must be accepted in full within a period of five months at the latest, unless otherwise agreed. If the buyer does not withdraw within this period, we are entitled to withdraw from the contract after the expiry of a reasonable time set by us or to demand damages instead of performance.
Further statutory claims, in particular for replacement of storage costs, remain unaffected.
§ 5 Defects and warranty rights
- Deviations of the delivered goods from the agreements made, which are part of the nature of the goods or their processing, are not defects. Samples and other information on the nature of the goods only illustrate the average loss of the goods in the context of the usual industry. Deviations basically do not justify a defect of the goods, unless the exact observance of the samples or details is expressly agreed or the deviation is unreasonable for the buyer.
- We give no guarantee for product descriptions. A guarantee exists only if it was expressly designated as such in writing.
- For PE film and bags the valid GKV test and evaluation clauses are binding.
- If there is a defect in the purchased item, we shall be entitled to dispose of the defect or to deliver a defect-free item at our discretion. If the type of subsequent performance chosen by us involves considerable disadvantages for the customer, the customer is entitled to demand a different type of supplementary performance.
- If no supplementary performance attempt is made within a reasonable period set by the customer in writing, which must be at least two weeks, or if a deadline is exceptionally unnecessary according to law, the customer is entitled to reduce the purchase price or withdraw from the contract. If a supplementary performance attempt has been made which has not remedied the defect, however, the customer shall only be entitled to these rights after unsuccessful expiry of a further reasonable period for supplementary performance, unless the buyer is unable to set a deadline.
- Claims for damages due to defects exist only under the conditions specified in § 8.
- Rights of defects shall be excluded if recognisable defects are not notified in writing immediately, but at the latest within five working days after handover, and other defects reported in writing within five working days of the occurrence of the defect at the latest. The same applies if the goods are processed or processed, consumed, mixed or sold by the buyer.
- The buyer's claim for defects shall be reduced accordingly if they fail to safeguard rights of recourse against third parties (e.g. forwarder, National railway, etc.). The Buyer is obliged, as far as reasonable, to take all appropriate steps to mitigate the damage.
- Complaint of delivery does not entitle to the refusal of further deliveries from the same or another contract.
- Measures taken by the seller to mitigate damages do not constitute acknowledgment of a legal obligation.
- The limitation period for claims for defects is one year from delivery.
§ 6 Delay of acceptance
If the buyer is in default of acceptance, the seller is entitled to withdraw from the contract after the expiry of a reasonable period set by them or to demand damages instead of performance. Further legal rights remain unaffected.
§ 7 Payment, late payment
- Our demands are due upon delivery of the goods immediately and without deduction for payment. The customer is in default of payment if they do not render within 14 days of the due date and receipt of an invoice, but no later than 30 days after receipt of the delivery. Earlier default of payment due to legal regulations remains unaffected.
- If the customer is in default, we are entitled to demand default interest to the amount of 10% above the base rate. The customer is entitled to prove to us that as a result of the delay, no or only a considerably lesser loss has been incurred. The right to assert higher damages remains reserved.
- Any discounts granted (with the exception of resale discounts and volume discounts) and benefits from the business affected by the late payment will lapse in this case.
- The Seller is entitled to make the delivery of the goods sold or pending part payments dependent on the previous payment of the entire purchase price or security, if it becomes apparent after the conclusion of the contract that their claim to consideration is jeopardised by lack of performance by the Buyer. The same applies if the Buyer defaults on agreed advance payments or partial payments.
- If several claims of the Seller against the buyer are open, payments of the Buyer are first charged with interest and costs, then with the oldest claim of the Seller.
§ 8 Withdrawal, liability for damages
- For the right to withdraw from the contract, statutory provisions shall apply with the proviso that a right of withdrawal due to a breach of duty not due to a defect only comes into consideration, if we are responsible for the breach of duty.
- A liability of the seller for breaches of duty, as well as in case of breach of a contractual obligation, constitutes intent and gross negligence, as far as the achievement of the purpose of the contract is endangered (cardinal duty) even in case of simple negligence. Apart from that, claims for damages are excluded. This limitation of liability
does not apply if the Seller has provided a guarantee for damages that are to be replaced under the Product Liability Act, as well as for damage to life, limb or health.
- If we are liable due to simple or gross negligence, our liability is limited to the damage which we typically would expect according to the circumstances known at the time the contract was concluded.
- If, due to slight negligence or gross negligence on the part of our employees or agents, who are not directors or executives, liability shall be limited to twice the amount of the remuneration. In addition, we are not liable in these cases for indirect damages, consequential damages or loss of profit.
- Proof of fault on the part of the seller is to be borne by the customer, who seeks damages.
- Insofar as our liability is excluded or limited by this provision, this also applies to the personal liability of our employees and freelancers.
§ 9 Retention of title
- Delivered goods remain our property until complete payment of all our claims against the Buyer. As far as they belongs to his normal business, the Buyer is entitled to the resale and processing of the reserved goods. However, resale is only permissible if the Buyer safeguards and guarantees our retention of title. Pledges or transfers by way of security of the reserved goods by the Buyer is not permitted.
- The Buyer hereby assigns to us the claim of the Buyer from the resale of the reserved goods up to the amount of our total claim as collateral and informs their customers of the assignment on a case-by-case basis. We accept the assignment. Regardless of the assignment, the Buyer is entitled to collect the assigned claim against their customer as long as they fulfil their obligations to us
and do not fall into financial collapse. - Sums collected must be transferred to the Seller immediately; Amounts received in cash, for example, must be kept separate and also forwarded to the Seller without delay.
- The Buyer is obliged to inform us of all circumstances in connection with the reservation of title - resale and assignment of claims, combination, mixing, processing, collection of assigned claims, possible enforcement measures by third parties or claims in lieu thereof, etc.
- In the case of foreclosure measures by third parties in goods subject to reservation or in their place, the Buyer undertakes to provide us with the documents and information necessary for the prosecution of their rights free of charge. The Buyer is liable for the costs of the cancellation of access, unless they can be obtained by the creditor.
- If our rights are endangered, in particular in the case of late payment, we are entitled to demand the reservation of title goods without granting a grace period. Return does not constitute withdrawal from the contract, unless it is expressly declared.
§ 10 Place of performance, jurisdiction, partial ineffectiveness
- The place of fulfilment for all claims arising from this contract is the Seller's domicile.
- If the customer is a merchant or the customer has no general place of jurisdiction in Germany, Syke is agreed as the place of jurisdiction.
- For all disputes arising from this contract, including in international business dealings, the law of the Federal Republic of Germany applies with the exception of the UN Sales Convention.
- Should one of these provisions be wholly or partially ineffective, the other provisions remain otherwise valid. The ineffective or incomplete provision will be replaced by a provision that comes closest to the meaning and purpose of the intended regulation.
Version August 2019