General Terms and Conditions of Sale of Alex Breuer GmbH Industrieverpackungen
§ 1 General, scope of application
(1) These General Terms and Conditions of Sale of Alex Breuer GmbH Industrieverpackungen (hereinafter referred to as “General Terms and Conditions of Sale”) apply to all our business relations with our customers (hereinafter referred to as “Buyer”). The General Terms and Conditions shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) These General Terms and Conditions of Sale apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB).
(3) Our General Terms and Conditions of Sale apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in all cases, for example even if we carry out the delivery to the purchaser unreservedly in full knowledge of the purchaser’s general terms and conditions.
(4) Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions of Sale. The content of such agreements shall be governed by a written contract or our written confirmation.
(5) Legally relevant declarations and notifications to be given to us by the buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing in order to be legally effective.
(6) References to the validity of legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions of Sale.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – for which we reserve ownership rights and copyrights.
(2) The order of the goods by the buyer is considered as a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 2 weeks of its receipt by us.
(3) The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
§ 3 Delivery time and delay in delivery
(1) The delivery period shall be agreed individually or specified by us when accepting the order. Delivery dates are non-binding unless expressly agreed as a transaction for delivery by a fixed date.
(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer thereof without delay and at the same time inform the Buyer of the expected new delivery period. If the performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the buyer. The case of non-availability of the service in this sense shall include in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are liable or we are not obliged to procure in individual cases.
(3) The occurrence of our delay in delivery shall be determined in accordance with the legal provisions. In any case, however, a reminder by the buyer is necessary.
(4) The buyer’s rights according to § 8 of these General Terms and Conditions of Sale and our legal rights in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
§ 4 Delivery, passing of risk, acceptance, default of acceptance
(1) Delivery will be made ex warehouse, where the place of performance is. At the request and expense of the buyer, the goods will be delivered to another destination (mail order purchase). Unless otherwise agreed, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest when the goods are handed over. In the case of mail order purchase, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer at the time of delivery of the goods to the freight forwarder, carrier or other person or institution designated to carry out the delivery. If acceptance has been agreed, this shall be decisive for the passing of risk. For the rest, the legal provisions of the law on contracts for work and services shall also apply correspondingly to an agreed acceptance. Delivery or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the buyer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs).
(4) Printing plates, tools, other production aids as well as test reports and authority approvals remain property of Alex Breuer GmbH Industrieverpackungen, even if they are partially or fully invoiced. Invoices for these items are due without delay. Alex Breuer GmbH Industrieverpackungen is not obliged to physically deliver any of those items. Any production aids are stored for a maximum period of 2 years after the last production and will be disposed after that without further notice.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value-added tax.
(2) With the mail order purchase (§ 4 Abs. 1) the buyer has to pay the transport costs up to a goods value of 150.00 EUR ex warehouse. From a value of goods of 150.00 EUR deliveries are made free domicile. The buyer carries the costs of a transport insurance desired by the buyer if necessary. Any customs duties, fees, taxes and other public charges shall be paid by the buyer. Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back by us; they will become the property of the buyer; pallets are excluded.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods.
(4) The buyer shall be in default upon expiry of the aforementioned payment period. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable from that time. We reserve the right to assert further claims for damages caused by default. Our claim against merchants for commercial interest on arrears (§ 353 HGB) remains unaffected.
(5) The buyer shall only be entitled to set-off or retention rights to the extent that his claim is legally established or undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these General Terms and Conditions of Sale.
(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is endangered by the Buyer’s lack of ability to pay (e.g. by filing for insolvency proceedings), we shall be entitled under the legal provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made items), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of ownership
(1) Until complete payment of all our present and future claims from the purchase contract and an ongoing business relationship (secured claims), we reserve title to the sold goods.
(2) The goods subject to retention of ownership may neither be pledged to third parties nor transferred by way of security prior to full payment of the secured claims. The buyer must inform us immediately in writing if and to the extent that third parties access the goods belonging to us.
(3) In the event of breach of contract by the purchaser, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the legal provisions and to demand return of the goods on the basis of retention of title and withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set the buyer a reasonable deadline for payment beforehand or if such setting of a deadline is dispensable under the legal provisions.
(4) The buyer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer stated in para. 2 shall also apply with regard to the assigned claims.
(c) The buyer shall remain authorised alongside us to collect the claim. We undertake not to collect the claim as long as the buyer fulfils his payment obligations towards us, is not in default of payment, no application has been made for the opening of insolvency proceedings and there is no other defect in his ability to pay. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer’s request.
§ 7 Defect claims of the buyer
(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise agreed below. In all cases, the statutory special provisions shall remain unaffected upon final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB).
(2) The basis of our liability for defects is above all the agreement made on the quality of the goods.
(3) If the quality has not been agreed, it is to be assessed according to the legal regulation whether a defect exists or not (§ 434 Paragraph 1 S 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The buyer’s claims for defects presuppose that he has fulfilled his legal obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this immediately in writing. If the Buyer fails to properly inspect the goods and/or to notify us of any defects, our liability for the defect not notified – with the exception of the special provisions under § 8 – shall be excluded.
(5) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(6) The buyer must give us the time and opportunity necessary for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us in accordance with the legal provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.
(7) If the buyer’s demand for the removal of defects turns out to be unjustified, we can demand compensation from the buyer for the resulting costs.
(8) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the objectively necessary expenses. We must be informed immediately, if possible in advance, of any such self-delivery. The right of self-remedy does not exist if we would be entitled to refuse a corresponding supplementary performance in accordance with the legal regulations.
(9) Claims of the buyer for damages or compensation for futile expenses exist only in accordance with § 8 and are otherwise excluded.
(10) For order quantities above 1000 sales units delivery quantity variations of +/-10% are negligible. For lower order quantities the delivery quantity variations may be significantly higher.
§ 8 Other liability
(1) Unless otherwise stated in these General Terms and Conditions of Sale including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant legal provisions.
(2) We shall be liable for damages – for any legal reason – in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable for
a) for damages resulting from injury of life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, 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); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the buyer according to the product liability law.
§ 9 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions of Sale and all legal relationships between us and the Buyer under exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Prerequisites and effects of the retention of title according to § 6 are subject to the law of the respective storage location of the item, insofar as the choice of law made is inadmissible or ineffective in favour of German law.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Cologne. However, we are also entitled to bring an action at the buyer’s general place of jurisdiction.
§ 10 Reading Purposes, Interpretation difficulties
The English Version of these General Terms and Conditions of Sale is for reading purposes only. In the event of deviations or difficulties of interpretation, the German version of these General Terms and Conditions of Sale (“Allgemeine Verkaufsbedingungen der Alex Breuer GmbH “) shall prevail and only the German version shall be legally binding.