General Terms of Sale of CLARUS Films GmbH
These General Terms contain a German and an English language version. In case of doubt or discrepancies the German language version shall prevail.
§ 1 Scope of application
- These General Terms of Sale (GTS) apply for all our business relationships with our customers (hereinafter referred to as "Purchasers"). They only apply for business persons in terms of Section 14 BGB (German Civil Code).
- Unless otherwise agreed, the GTS apply in the version applicable at the time of the purchaser's order and also for similar future agreements without requiring a reference to them in each individual case.
- Our GTS apply exclusively. Deviating, opposing or supplemental general conditions of the purchaser become a component of the agreement only and to the extent as we have agreed to their validity in writing.
§ 2 Formation of an agreement / changes to an agreement / subsidiary agreement
- Our offers are subject to change and non-binding.
- The ordering of the goods by the purchaser constitutes a binding offer of contract. This offer is accepted upon our confirmation in text form.
- A contract or our confirmation in text form is decisive in case of individual agreements made with the purchaser in isolated cases, including subsidiary agreements, supplements and changes.
§ 3 Prices
- Unless otherwise agreed in individual cases, our prices respectively current at the time of formation of an agreement apply ex storage plus statutory VAT.
- At the request and expense of the Purchaser, the Goods can be sent to the Purchaser or a different place of destination (dispatch sale). Packaging of the goods as well as the type of dispatch are subject to our due discretion.
- If the Purchaser requests transport insurance or a different kind of packaging or dispatch, he has to inform us of this fact in writing in his offer. In such a case, the Purchaser is responsible for the additional costs.
- Any customs fees, levies, taxes and other public dues are borne by the Purchaser.
§ 4 Payment conditions / offsetting / right of retention
- The purchase price is due and payable within 30 days from date of invoice and delivery and/or acceptance of the Goods. In the context of an ongoing business relationship, we are always entitled to provide full or partial delivery only subject to prepayment. A respective reservation is declared with our order confirmation at the latest.
- The Purchaser is in default upon the expiration of the above-mentioned payment deadline. The purchase price shall incur interest in the amount of the respectively applicable legal default interest for the duration of the default. We reserve the right to assert further damage caused by default.
- If it becomes or is evident or known after the conclusion of the agreement that our claim to the purchase price is in jeopardy due to the Purchaser's lack of efficiency, we are entitled to demand surety for the still pending services from the contractual relationship or to refuse delivery and withdraw from the Agreement according to the law. The Purchaser is considered unable to perform if a credit insurance company active in Europe or a respective rating agency or a collection agency cautions against a business relationship with the Purchaser or rejects such a business relationship. The same applies if a downgrading in the credit index by 10 % points is published within a period of six months.
- In case of new customers and high order values, we are entitled to demand prepayment of an appropriate amount in relation to the total value of the order.
§ 5 Off-setting rights and rights of retention
The Purchaser is only entitled to offsetting rights and rights of retention if his claims are final and absolute or uncontested.
§ 6 Term of delivery / default in delivery
- The delivery period is specified by us in writing in the confirmation upon acceptance of the order. We reserve the right to deliver the goods up to one week prior to the above-mentioned delivery date.
- If we are not able to comply with the delivery deadlines for reasons which are not our responsibility, we shall notify the Purchaser of this fact without undue delay and simultaneously inform him of the anticipated new delivery date. This also applies in the event that further information and documents for the production are required from the Purchaser and if he does not provide the necessary documents in due time.
- The plea of the unfulfilled contract remains reserved.
- If we are not supplied with raw materials auxiliary materials or utilities / semi-finished/finished products and goods in due time by our suppliers, even though we have placed congruent orders with reliable suppliers and if neither we nor our supplier is responsible and if we are not obligated to procure the item in individual cases, we are entitled to a full or partial withdrawal from the Agreement. We shall reimburse any advance payments from the purchaser immediately.
- If force majeure (e.g. natural disasters, war, civil war, terror attack etc.) renders the delivery or other service permanently impossible, any obligation to perform on our part is excluded. We shall inform the purchaser of these circumstances immediately and reimburse any advance payments.
- The commencement of our delay in delivery is determined by the statutory regulations.
§ 7 Delivery / partial delivery / acceptance / default of acceptance
- The delivery occurs ex works, which is also the place of fulfilment.
- We are entitled to make partial deliveries.
- A 10% deviation from the delivery quantity for production reasons is admissible. In this case, the remuneration is adjusted accordingly.
- The risk of accidental destruction and accidental deterioration of the Goods is transferred to the Purchaser upon handover to the Purchaser at the latest. In case of dispatch sale (§ 3 (2)), the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay is transferred to the purchaser upon delivery of the goods to the forwarding agent, the carrier or other persons or institutions commissioned with the execution of the dispatch. This also applies for partial deliveries.
- If the Purchaser is in default of acceptance, omits his act of cooperation or if our delivery is delayed for other reasons owed to the Purchaser, we are entitled to demand compensation for the incurred damage including additional expenses. In this event, we charge a flat amount of compensation of € 20.00 per calendar day and pallet place, commencing with the day at which the goods are ready for dispatch and at which we have notified the Customer, plus one-off costs for storage and retrieval in the amount of € 7.50. The verification of greater damage and our statutory claims remain unaffected. However, the flat fee shall be offset against further monetary claims. The Purchaser is entitled to prove that we incurred no damage at all or a significantly lesser damage than the flat-rate stipulated above.
- If the dispatch or acceptance is delayed due to a circumstance caused by the Principal, the risk is transferred to the customer on the day upon which the delivery item is ready for dispatch and once we have informed the customer of this fact.
§ 8 Reservation of title
- Reservation of title is our surety for all existing current and future claims against the purchaser from the existing contractual relationship.
- The goods delivered / dispatched by us remains our property up to the full payment of the secured claims (hereinafter referred to as reserved goods).
- The Purchaser has to insure the reserved goods against typical risks such as fire, burglary, theft, tempest and water.
- In the event of the purchaser acting contrary to the agreement, particularly in case of default of payment, we are entitled to demand the return of the reserved goods or withdraw from the Agreement according to the statutory regulations.
- Until revocation, the purchaser is entitled to process and sell the reserved goods in the course of proper business transactions. If the purchaser processes the reserved goods, the contractual partners agree that the processing occurs in the name and at the risk of the purchaser and that we obtain ownership and/or co-ownership of the newly create item and/or future property immediately at the ratio of the value of the reserved goods to the newly created item.
- If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if another item is regarded as the main item, the purchaser shall transfer to us co-ownership at the ratio of the value of the reserved goods to the value of the newly combined/mixed item, insofar as the main item is his property.
- The reserved goods may not be mortgaged or pledged as security to third parties. If third parties access the reserved goods, particularly in case of seizures, the purchaser shall point out our ownership of these items and contact us in writing to allow us to enforce our proprietorship. In the event of an action to oppose enforcement, the purchaser is responsible for the respective costs incurred by us.
- In the event of the resale of the reserved goods, the purchaser hereby assigns to us the resulting claims by way of security - proportionate to the co-ownership share in case of co-ownership of the Reserved goods. This applies also in case of other claims replacing the reserved goods or are otherwise generated with respect to the reserved goods, such as insurance claims or claims from tortious acts in case of loss or destruction. We accept this assignation.
- The Purchaser, next to us, remains authorised to collect the claim. We are obligated to refrain from collecting the claim as long as the Purchaser complies with his payment obligations toward us and does not default on payments. Otherwise, we can demand that the purchaser discloses to us the assigned claims and their debtors, provides all details necessary for the collection, supplies the respective documentation and informs the debtors of the assignation.
- The purchaser is obligated to inform us in writing without undue delay if an application for insolvency proceedings has been lodged.
- We are entitled to revoke the purchaser's right according to § 8 (5) if an application for insolvency proceedings has been lodged, in the event of a lack of performance or if the purchaser seizes payment.
- If the realisable value of the sureties exceeds our claims by more than 10%, we shall release securities at the request of the purchaser at our discretion.
§ 9 Warranty
- Unless otherwise determined below, the statutory regulations apply for the Purchaser's rights in case of material defects and defects of title.
- The Purchaser's warranty claims imply that he has complied with his statutory inspection obligations and requirement to give notice of defects (§§ 377, 381 HGB (German Commercial Code)). The delivered goods have to be examined carefully immediately upon delivery to the purchaser or a third party determined by the purchaser, if this is feasible according to the proper course of business. In the event of a defect, the purchaser has to inform us in writing without undue delay. Obvious defects have to be reported within 10 calendar days from delivery and, in case of indistinguishable defects within the same period from the time of discovery.
- If the purchaser omits notification, the merchandise is deemed approved unless the defect was not evident at the time of the inspection.
- If the goods supplied by us are defect, we are initially entitled to select whether we provide subsequent fulfilment by eliminating the defect or delivering a defect-free item. The Purchaser is obligated to hand over the rejected goods to us for examination purposes. Our right to refuse the subsequent fulfilment according to the legal prerequisites remains unaffected.
- We point out that the storage conditions have a considerable impact on the processing characteristics of packaging films. For this reason, the films may not be stored near radiators or at temperatures above 21 degrees C or be exposed to direct sunlight. The ideal processing conditions are storage temperatures between 15 and 20 degrees C and a humidity of 50 to 60 %. Open rolls/cardboard boxes have to be properly repackaged. Warranty claims can only be asserted if these storage conditions were upheld.
- Minor colour deviations, particularly in case of replacement deliveries, are not considered defects. For the remainder, the regulations of the GKV (statutory health insurance companies) test and assessment clause 1959, folio 1 to 4 in the respectively applicable version apply for the quality assessment of our products with the exception of no. 3.3 sentence 1 of Folio 1.
- If the subsequent fulfilment has failed or if an appropriate period of grace set by the purchaser for the subsequent fulfilment has expired unsuccessfully or is expendable according to the statutory regulations, the purchaser may withdraw from the agreement - in the event of a significant defect - or reduce the purchase price.
- Compensation claims of the purchaser due to defects are only applicable according to § 10 and are excluded for the remainder.
- 10 Other liability
- Our liability for compensation, regardless of the legal reason, particularly due to impossibility, delay, defect or incorrect goods, breach of contract, violation of obligations during contract negotiations and tortious act is limited according to the specifications of this § 10.
- In the event of simple negligence by our organs, statutory representatives, employees or other vicarious agents, we are only liable for damages resulting from the violation of life, limb or health or damages resulting from the violation of obligations essential to the Agreement. An obligation essential to the agreement is understood to be an obligation, the fulfilment of which is essential for the execution of the agreement and upon the fulfilment of which the customer may regularly rely. In this case, our liability is limited to damages, which we have envisaged at the formation of the agreement as a possible consequence of a breach of contract, or which we should have envisaged if we had exercised customary diligence. Indirect damages and subsequent damages, which are a consequence of the defect goods, are furthermore only subject of replacement if such damages are to be typically expected at the usage of the delivery item according to the intended purpose. This does not apply if consequential damage only occurred because the purchaser has not observed the storage conditions (see § 9 (5)).
- The above-mentioned exclusions and limitations of liability apply equally in favour of our organs, legal representatives, employees and other vicarious agents.
- In as far as we provide the purchaser with technical information, act in an advisory capacity or issue recommendations which are not part of the owed, contractually agreed scope of performance, this occurs free of charge and subject to the limitation of § 10.
- The limitations of § 10 do not apply in case of negligent or intentional conduct, for guaranteed quality features, the violation of life, limb or health of the body or health or according to the Product Liability Act.
§ 11 Choice of law and place of jurisdiction
- The law of the Federal Republic of Germany applies for these General Terms of Sale and all contractual relationships between the Purchaser and us, excluding international uniform law, particularly the United Nations Convention on Contracts for the International Sale of Goods.
- Unless specifically agreed upon in an individual agreement, exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship is our registered business address in Dietzenbach.
- If individual regulations of the contractual agreements between us and the purchaser including the GTS are completely or partially ineffective, the contractual parties undertake to agree on a condition which is closest to the economic intentions.
Reference to § 28 Federal Data Protection Act:
We store data from the contractual relationship for the purpose of data processing.