1. General
The following general terms and conditions (hereinafter also referred to as "GTC") apply only to businesses (§ 14 German Civil Code), legal entities under public law, and special funds under public law. They form an integral part of all contracts and agreements concluded with us. By accepting these terms and conditions without objection, or at the latest upon receipt of our goods or other services, the customer agrees to their validity – also for any subsequent transactions.
The validity of any differing general terms and conditions of the customer is hereby expressly rejected, even if they are transmitted to us in a confirmation letter or otherwise. The unconditional delivery of goods and services, as well as the acceptance of payments by us, does not constitute acceptance of any differing terms. Unless otherwise stipulated in these General Terms and Conditions, the terms and definitions of INCOTERMS 2010 shall apply.
2. Offers, contracts
Our offers are non-binding. The customer's order constitutes a binding offer to enter into a contract. A contract is only formed upon our written order confirmation or when the order has been fulfilled by us.
We reserve all proprietary and copyright rights to samples, formulas, drawings, and other documents. They may not be made accessible to third parties. The customer requires our express written consent before passing them on to third parties.
This also applies to documents marked as "confidential", regardless of whether they are in written or electronic form.
Amendments, additions, and/or the cancellation of this contract must be in writing. This also applies to any waiver of this written form requirement itself. Declarations and notices from the customer after conclusion of the contract are only valid if made in writing.
3. Prices, terms of payment
We are entitled to assign claims arising from our business relationships.
All payments must be made exclusively to VR FACTOREM GmbH, Ludwig-Erhard-Straße 30-34, 65760 Eschborn, to which we have assigned our present and future claims arising from our business relationship. We have also transferred our retention of title to VR FACTOREM GmbH.
Unless otherwise agreed in writing, the purchase price is payable upon delivery. If the buyer is in default of any payment obligations to us, all outstanding claims become due immediately.
Unless otherwise agreed, our prices are quoted in EURO net "ex works" (EXW) Bitterfeld-Wolfen. Shipping and packaging costs, as well as value added tax at the applicable statutory rate, are not included and must be borne by the buyer. For export deliveries, this also applies to customs duties and other public charges.
Discounts require a separate written agreement. For deliveries scheduled at least two months after the contract date, we reserve the right to adjust our prices appropriately at our reasonable discretion if, after the contract is concluded, cost reductions or increases occur, particularly due to collective bargaining agreements or changes in material prices, which were unforeseeable for us at the time of contract conclusion. We will provide proof of these changes to the customer upon request.
The buyer is not entitled to set off any counterclaims unless such counterclaims are undisputed or have been legally established. The buyer is not entitled to assert a right of retention unless it arises from the same contractual relationship or the counterclaims are undisputed or have been legally established.
4. Place of performance, transport insurance
The place of performance for our deliveries is our registered office.
If delivery is to be made "ex works" (EXW) Bitterfeld-Wolfen, the risk of accidental loss or accidental damage to the goods passes to the buyer at the time we inform them that the goods are ready for collection. The risk also passes to the buyer if they are in default of acceptance or breach a duty to cooperate, unless they are not responsible for the breach. In these cases, we are entitled to store the goods at our premises or with a third party at the buyer's expense.
If the goods are shipped by us at the customer's request, the risk passes to the customer at the latest when the goods are made available for loading on our premises. This also applies to transport using our own vehicles.
If permissible partial deliveries are made, the transfer of risk applies to these.
Even with free delivery, the risk passes to the buyer when the products are dispatched. If the buyer wishes, we will insure the shipment at their expense.
Transport and all other packaging materials, in accordance with the Packaging Ordinance, will not be taken back; the exception is Euro pallets, which must be returned. The customer is obligated to dispose of the packaging at their own expense.
5. Delivery, obligations to cooperate
Unless otherwise stated in our order confirmation, delivery is agreed to be "ex works" (EXW) Bitterfeld-Wolfen. This also applies if we ship the goods to a different location at the customer's request.
The scope of our delivery obligation is solely defined by the written delivery contract, including these General Terms and Conditions. We reserve the right to make changes to materials, shapes, and colors that are based on technical improvements or legal requirements, provided that such changes are not substantial or otherwise unreasonable for the customer. Partial deliveries may be made and invoiced if they are acceptable to the customer.
Delivery and service deadlines and dates provided by us are always approximate unless a fixed deadline or date has been expressly promised or agreed upon. If no specific delivery deadline has been promised or agreed upon, the delivery time is approximately 6 weeks from the conclusion of the contract. If shipment has been agreed upon, delivery deadlines and dates refer to the time of handover to the freight forwarder, carrier, or other third party commissioned with the transport.
Delivery dates are always subject to the customer's cooperation as stipulated in the contract. The agreed delivery time is suspended for the duration of the customer's review of samples, proofs, etc., until the date the customer's response is received.
Our ability to fulfill our delivery obligations is contingent upon the timely and proper fulfillment of the customer's obligations. If we ourselves are not supplied, despite having placed matching orders with reliable suppliers, we are released from our obligation to perform and may withdraw from the contract.
If, after conclusion of the contract, it becomes apparent that the customer does not provide sufficient assurance of their solvency and our claim for payment is at risk, we are entitled to refuse delivery until the customer makes payment or provides security for it. If payment or security is not provided within 12 working days of a corresponding request, we are entitled to withdraw from the contract.
If the buyer defaults on the order for collection, acceptance, or pickup, or if a delay in shipment or delivery is attributable to the buyer, we are entitled, without prejudice to any further claims, to demand a flat-rate fee equal to the local standard storage costs, regardless of whether we store the goods ourselves or with a third party. The buyer retains the right to prove that no damage or a lesser amount of damage has been incurred. Call-off orders must be accepted and paid for no later than 12 months after the conclusion of the contract, unless expressly agreed otherwise.
6. Delivery delays
If the agreed deadline cannot be met due to circumstances beyond our control or that of our suppliers, it will be extended accordingly. We will inform the customer immediately of such an event. If the hindering circumstances persist for one month after the agreed delivery deadline, either party may withdraw from the contract. Further claims due to delays in delivery for which we are not responsible are excluded.
In the event of a delivery delay, the customer is entitled – provided they can credibly demonstrate that they have incurred damages as a result – to claim liquidated damages for each completed week of delay amounting to 0.5% of the delivery value, up to a maximum of 5% of the delivery value. The customer may also set us a reasonable grace period in writing, which must be at least 15 working days. After this period has expired without delivery, the customer is entitled to withdraw from the contract or claim damages in lieu of performance.
The customer's claims for damages due to delayed delivery, as well as claims for damages in lieu of performance exceeding the aforementioned lump sum, are excluded in all cases of delayed delivery, even after the expiry of any delivery deadline set for us.
Paragraph 2 above does not apply if the delay is due to intent, gross negligence, or a material breach of contract (an obligation whose fulfillment is essential for the proper performance of the contract and on whose compliance the other party regularly relies and may rely). It also does not apply if a fixed-date commercial transaction has been agreed upon. A fixed-date transaction requires the express written confirmation of our management. In any case, however, liability for damages is limited to foreseeable, typically occurring damages. The above provisions do not entail any shift in the burden of proof to the detriment of the customer.
7. Retention of title
Title to the delivered goods remains with us until all our claims against the customer arising from the business relationship, including future claims from contracts concluded simultaneously or subsequently, have been settled. This also applies if claims are included in a current account and the balance has been drawn and acknowledged.
The buyer is entitled to resell or process the goods in the ordinary course of business. Any processing is carried out on our behalf, without creating any obligation for us. In the event of processing, combining, or mixing the goods subject to retention of title with other goods, we acquire a co-ownership share in the new item. In the case of processing, this share is proportionate to the value (gross invoice value including incidental costs and taxes) of the goods subject to retention of title relative to the value of the new item. In the case of combining or mixing, this share is proportionate to the value of the goods subject to retention of title relative to the value of the other goods.
The customer hereby assigns to us, as security, all claims arising from the resale of the goods against a purchaser or against third parties, either in full or up to the amount of our potential co-ownership share as described in the preceding paragraph. If a current account relationship exists between the customer and the third party, the assignment also extends to the recognized balance. We accept the aforementioned assignments. The customer remains authorized to collect the aforementioned assigned claims even after the assignment. Our right to collect the claims ourselves remains unaffected; however, we will not exercise this right as long as the customer duly fulfills its payment and other obligations. Upon request, the customer must inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors of the assignment.
In the event of a breach of contract by the buyer, particularly in the case of late payment, we are entitled to withdraw from the contract and reclaim the goods. A demand for the return of the goods does not automatically constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and reserve the right to withdraw from the contract. If the buyer fails to pay the purchase price when due, we may only exercise these rights if we have previously set the buyer a reasonable deadline for payment without success, or if setting such a deadline is unnecessary under applicable law. For the purpose of reclaiming the goods, the buyer hereby irrevocably grants us permission to enter their business premises and storage facilities unhindered and to remove the goods.
As long as the retention of title remains in effect, the buyer may not, without our consent, transfer ownership of the goods or items manufactured from them as security or pledge them. Financing agreements (e.g., leasing) that include the transfer of our rights of retention of title require our prior written consent, unless the agreement obligates the financing institution to pay the portion of the purchase price due to us directly.
In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing. The customer is prohibited from making any agreements with their customers that could infringe upon our rights.
We undertake to release the securities to which we are entitled at the request of the customer and at our discretion, insofar as the realizable value of the securities exceeds the claims to be secured by more than 20% or their nominal amount by more than 50%.
To assert rights arising from retention of title, a withdrawal from the contract is not required, unless the debtor is a consumer.
8. Product details
Our information about our products and processes is based on extensive research and application-related experience. We communicate these results, for which we assume no liability beyond the respective individual contract, to the best of our knowledge, both verbally and in writing; however, we reserve the right to make technical changes in the course of product development.
However, this does not relieve the user of the responsibility to test our products and processes for their suitability for their own use.
The customer's specifications for use are only binding if we have confirmed in writing to the customer at the time of contract conclusion that the delivered products are suitable for the customer's intended use. This also applies with regard to the protection of third-party intellectual property rights as well as to applications and procedures.
9. Over/under delivery, dimensions and tolerances
We are entitled to make production-related quantity deviations of up to 10%, but for order quantities exceeding 5,000 kg, the maximum deviation is +/- 500 kg. For orders of fewer than 500 units or for particularly complex designs, higher tolerances of up to a maximum of 20% are permitted unless otherwise agreed.
The order will be executed in accordance with the general state of the art within the technically necessary material and packaging-related tolerances and in commercially available quality, unless specific execution standards have been agreed upon in individual cases.
Unless otherwise agreed and/or specified in the product overviews/datasheets for the respective product, the following format tolerances apply: for square cuts +/- 1 mm, for non-square cuts and large formats +/- 5 mm. Width tolerances: for roll goods +/- 1 mm. Thickness tolerances: for film thickness < 200 µm +/- 10%, 200 to 400 µm +/- 7%, > 400 µm +/- 5%. Industry-standard variations in color, selection, weight, length, etc., do not constitute grounds for complaint.
10. Material defects
The statutory provisions apply to the buyer's rights regarding material defects and defects of title in the goods, unless otherwise specified below. In any case, the special statutory provisions for the final delivery of goods to a consumer (supplier recourse pursuant to Sections 478 and 479 of the German Civil Code) remain unaffected.
With regard to material defects, the purchaser is initially subject to the statutory obligation to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
The buyer cannot derive any further rights from defects that do not, or only insignificantly, impair the value and suitability of the goods for their intended use. Deviations in the quality of raw materials and supplies cannot be objected to insofar as they are permitted under the delivery terms of the plastics industry, and in the case of printing, insofar as they are due to differences inherent in the printing process between the proof and the final print run. No guarantee is given for lightfastness or colorfastness. Manufacturing tolerances, particularly regarding color variations, are not grounds for complaint. Warranty is excluded for templates and films supplied by the buyer. If specific requirements are imposed on packaging by law, regulation, or tender, the buyer must expressly indicate this.
If the goods have a defect at the time of the transfer of risk, we are initially entitled to remedy the defect. Remedying the defect will be carried out at our discretion by repair or replacement.
If the subsequent performance fails, the customer is entitled, at his discretion, to demand withdrawal from the contract or a reduction in price.
We are entitled to make the required subsequent performance contingent upon the buyer paying the outstanding purchase price/compensation. However, the buyer is entitled to withhold a portion of the purchase price/compensation that is proportionate to the defect.
The customer must grant us the necessary time and opportunity to fulfill our obligation to remedy the defect, in particular by providing the goods in question for inspection. In the case of a replacement delivery, the customer must return the defective item to us in accordance with statutory regulations.
We will bear the expenses necessary for inspection and subsequent performance, in particular transport, travel, labor, and material costs, if a defect actually exists. However, if a customer's request for rectification proves to be unjustified, we may demand reimbursement of the resulting costs from the customer.
The limitation period for claims relating to defects in our products is 12 months from the date of delivery. This period does not apply where the law, pursuant to Sections 438 I No. 2, 479 I, and 634a I of the German Civil Code (BGB), mandates longer periods. Our consent must be obtained before any goods are returned.
Any other liability on our part, in particular for damages, is governed by clause 11 below.
11. Other liability for damages
1. Unless otherwise stipulated in these Terms and Conditions, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
2. We are liable for damages – regardless of the legal basis – in cases of intent and gross negligence. In cases of simple negligence, we are only liable.
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typical contractual damages at the time of conclusion of the contract.
3. The limitations of liability arising from clause 2 do not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods. The same applies to claims by the customer under the Product Liability Act.
The customer may only withdraw from or terminate the contract due to a breach of duty that does not constitute a defect if we are responsible for the breach. The customer's right to terminate the contract at will (in particular pursuant to Sections 651 and 649 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply to withdrawal from or termination of the contract.
The above regulations do not entail any shift in the burden of proof to the detriment of the customer.
12. Copyrights, other industrial property rights, tools, designs
The customer assumes full responsibility for ensuring that the use of samples, printing templates, etc. provided by him or produced according to his specifications does not infringe the rights of third parties and indemnifies us against any liability in this respect.
Tools, lithographs, films, printing and embossing forms, samples, sketches, etc. produced by us or on our behalf remain our property, even if the production costs are billed to the customer in whole or in part.
The obligation to retain third-party printed materials and other customer-specific items only applies for 24 months from the last delivery produced using these items.
Tools, lithographs, and films will be destroyed and professionally disposed of by us free of charge for the customer after 24 months, but no later than 5 years after the last delivery produced with them. Returning tools to the customer is out of the question.
13. Die-cutting and typesetting errors, additional orders
Any necessary modifications to the die-cutting and printing template will be charged according to the time spent on them.
The same applies to corrections resulting from illegibility and to other corrections, especially those made by graphic designers.
14. Evidence for export deliveries and intra-Community deliveries
If the delivery by us is made as a VAT-exempt export delivery or processing of goods for export or a VAT-exempt intra-Community supply within the meaning of Sections 4 No. 1 lit. a and b, 6, 6a, 7 of the German VAT Act (UStG), the customer is obliged to provide us, upon our request, with all written documents in accordance with Sections 8 et seq., 17a et seq. of the German VAT Implementing Regulation (UStDV) that are necessary to maintain the VAT exemption, in particular, but not exclusively,
a) in the case of export deliveries or processing of goods for export, an export confirmation from the border customs office of a Member State of the European Union that monitors the exit of the delivery from the Community territory;
b) in the case of intra-Community supplies, the delivery note, a written confirmation of receipt from the purchaser or the recipient to whom the purchaser is delivering, and in cases where the purchaser transports or dispatches the goods, a written declaration from the purchaser or his agent that he is transporting the goods to the rest of the Community territory.
If the customer fails to send us the requested documents within a two-week deadline after we have requested them, the customer is obligated to pay us a contractual penalty. The amount of the penalty is the equivalent in euros of the value-added tax (VAT) that would have been due on the delivery. We reserve the right to claim further damages. The contractual penalty will be credited against any damages resulting from any VAT that may actually be subsequently demanded by the authorities.
15. Force Majeure
We are not liable for impossibility of delivery or for delivery delays insofar as these are caused by force majeure or other events that were unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official actions or the failure, incorrect or untimely delivery by suppliers) for which we are not responsible.
If such events significantly impede or render impossible our delivery or performance, and the impediment is not merely temporary, we are entitled to withdraw from the contract. In the case of temporary impediments, the delivery or performance deadlines or dates will be extended or postponed by the duration of the impediment plus a reasonable start-up period. If, as a result of the delay, acceptance of the delivery or performance is unreasonable for the customer, they may withdraw from the contract by giving us immediate written notice.
16. Place of jurisdiction
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is the registered office of our company or Frankfurt am Main; if we bring an action, the customer's general place of jurisdiction also applies.
17. Applicable Law
All legal relations between the customer and us are governed by the law of the Federal Republic of Germany, in particular the German Civil Code and the German Commercial Code, excluding the conflict of laws rules of its private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
18. Partial invalidity
Should individual provisions of these terms and conditions be wholly or partially invalid, the validity of the remaining provisions shall remain unaffected.
October 2015
