All agreements and offers underlie the following Flexipack International Wunderlich GmbH + Co. KG (hereinafter the “seller“) conditions. These conditions are considered to be accepted when an order is placed or a delivery is accepted if the client/customer was provided the opportunity to take note of the contents of these conditions in due time and reasonable manner. Differing client/customer conditions, which are not explicitly accepted in written form by the seller, are non-binding even if they are not specifically contradicted.
1. All offers are only valid in written form.
2. The prices stated apply under the reservation that the order terms of the offer remain unaltered. The offered prices are EURO net prices (excluding sales tax/VAT) and remain valid for three months from the date of receipt. Prices are ex works unless otherwise agreed. Delivery takes place for account of the client and at the client’s risk. Packaging is stated in the order confirmation. However, pallets, covering boards, wooden crates and other borrowed packing remain property of the seller. Packaging must be returned within a reasonable time, in good condition and, unless otherwise agreed, free-of-charge.
3. If the completion of an accepted order results in an increase of the production and operating costs, particularly by an increase in the price of raw materials, freight charges, traffic tolls or wages, then the prices are subject to an appropriate change.
II. Order Acceptance – Order – Order Placement – Order Revisions
1. The contract is considered to be closed as soon as customer confirms the order in written form. Subsequent changes to the order, caused by the client, authorize the seller to make corresponding changes to the contract conditions affected. All contract changes or cancellations must be made in written form.
2. In the case that we later receive information that make the client’s ability to pay questionable then the seller is entitled to demand an advance payment or appropriate security for further order processing.
1. Acceptance of technical data by the client:
The construction drawings provided by the client are to be checked by the seller in respect of all important and required characteristics for the order. The client must sign the documents and return them to the seller to show their acceptance. If changes are needed then these must be clearly marked. The seller is not liable for possibly noticeable defects that were overlooked by the client during inspection or that were not rejected unless the seller maliciously concealed these defects.
2. Amount Tolerances:
Principly, the buyer is allowed to make over- and under-deliveries up to 10%. Depending it is caused due to production conditions. Discrepancies can not be claim later.
3. Quality Tolerances:
The order is completed in standard quality according to the general state-of-the-art within the technically needed tolerances caused by materials and processes unless other specific completion norms are agreed upon with the client.
Tolerance in terms of dimensions and qualities + / – 5%, Tolerance in terms of weight + / – 10%
4. Delivery Period:
Delivery terms can only be made approximately. Delivery terms are non-binding unless a more specific delivery date is agreed upon in written form. The supply terms valid for forwarders also apply to the seller. Compliance of an agreed delivery period, which requires the written form, imply that the client fulfills their obligations in due time (e.g. provision of order documents, needed material, construction drawing consent, etc.). If the client demands changes to the order, that influence the production period, after order confirmation, then a new delivery time begins with the confirmation of the changes.
5. Performance Default:
If the seller delays performance then the client can only practice their rights according to § 323 German Civil Code when the seller is responsible for the delay. A change to be proof is not evidence based to this regulation. Operational disturbances to the seller’s operations or the operations of external companies upon which the delivery or production is considerably dependent release the seller from the delivery period, without entitlement to damages, if only untimely or unreasonable expenses would provide relief. In this case, the delivery time is extended for the term of the operational disturbance. All serious constraints which are not objectively caused by the seller or which cannot be foreseen, especially general raw materials or energy shortages, traffic, interferences by authorities, labor disputes, war, exportation and all extensive fires are considered operational disturbances. The above passage also applies when the seller is not supplied by their supplier in time despite congruent covering purchase.
6. Goods acceptance:
Good acceptance must follow the contractual agreements. If an acceptance was agreed upon stand by call. In this case goods must be collected with 6 months at latest unless otherwise agreed upon in written form. It goods are further delayed then the client may charge for only by proving arise cost. The quality and other risks are transferred to the client after the expiration with in 6 months, at the latest, after the first delivery date.
1. Invoices are payable within 8 days from the date of invoice in cash or banktransfer with a 2% discount or within 30 days without any discount. New clients must pay in advance or by cash on delivery. The same applies to all orders with a value up to 150.00 EUR.
Discounts do not apply on freight, postage, insurance or other delivery costs. The invoice is dated with the date of delivery, partial delivery or delivery capacity. Bills of exchange are only accepted with prior agreement and without any discount. Interest and costs are bear by the client. These are to be paid immediately by the client. The seller is not liable for presentation, protest, notification and return of the bill of exchange provided. The seller so far his vicarious agents were not mainly involve intentionally, deliberately. The seller is not be noble of any desput.
2. In cases of extraordinary advance concession is required an appropriate advance payment can be demanded.
3. The client can only practice the right of retention based on offset indisputs or legal binding s claims.
4. After agreements has been signed and its gets clear that payment is at risk because of client performance incapability’s then the seller is entitled to demand payment in advance, to hold back the delivery of goods not yet delivered and to stop further production. The seller also has these rights when the client defaults on a payment for a delivery, which is based on the same legal conditions. § 321 II German Civil Code remains unaffected.
5. The client must pay default interest (8% over the prime rate) on late payments. This does not exclude the possibility to assert further claims for damages caused by delay. If the client does not pay, in full including all extra charges listed in I., within 30 days of receiving the invoice and delivery of goods then the client defaults on the invoice without receiving a reminder notice.
V. Retention of Title
Delivery of goods takes place according to the retention of title rights in § 455 of the German Civil Code with the following additions.
a) All goods shall remain our property until the customer has paid the total amount of cost fulfilled all claims that we have against him under the whole business relationship.
b) The purchaser’s receivable claims from onward sale of the retained title goods are hereby assigned to us and, more precisely, regardless of whether the retained-title goods have been processed or not and regardless of whether they were sold onward to one or more users. The surrendered claim acts as security on the value of the item only of the according sold goods subject to retention of title. In the case that the goods subject to retention of title are sold or passed on with or without further processing then the value of the goods subject to retention of title are limited to the value of the sales contract.
c) The purchaser is only authorized to resell the goods subject to retention of title when the sales price resulting from the resale is passed in to the seller according to d).
d) The purchaser is authorized to sell or make further use of the goods unless they default on their payment. In any case the purchaser is now responsible for surrendering all total outstanding payments including sales tax that he receives by selling the goods to a third party regardless of whether the goods have been processed or not. The purchaser is not authorized to surrender the claim to banks or other third parties.
e) The retention of title according to the above regulations also applies when individual outstanding payments are added into a current invoice and the present balance is acknowledged by the purchaser.
f) The purchaser is not allowed to pledge the delivered item or surrender it as security. If it is pledged, seized or disposed of in any other way by or to third parties, he must inform the seller without delay.
VI. Inspection Obligation, Notification of Defects and Statute of Limitations
1. Goods are to be inspected immediately on receive at the place of destination and in a professional manner. This inspection must cover all important and stipulated characteristics of the packaging. The client is also oblige to inspect the delivery of samples.
2. Apparently faults must be claimed in written form within one week of receiving the goods. Also hidden faults must be claimed in written form within one week of discovering the fault otherwise the assertation of the warranty claim is excluded. Faults in parts of a delivery shall not result possibly in a claim against the entire delivery if a separation of the reasonable defective and defect-free parts is.
3. In cases of legitimate claims of faults, the seller is authorized to select to remedy the faults or replace the defect parts. If the seller fails to remedy the fault within a reasonable period of time or if repeated reworking fails then the client may reduce the purchase price or withdraw from the contract.
4. The seller does not ensure that the packaging is appropriate for the intended further use of client unless specific characteristics are guarantee in written form. Irrelevant differences from the original cannot be claimed. Liability for defects that do not influence the value or usability of the product is excluded. The seller is only liable for certain variations in the characteristics of the used material up to the basis value of the contract.
5. The seller is only responsibly for changeability, deviations, etc. if these material defects were recognizable after they were correctly inspected and before they were used.
Any claims what so ever for damages and compensation of expenses of the customer against us are excluded regardless of the legal ground.
This liability exclusion does not apply in cases of:
a) deliberately or recklessly caused damages,
b) in the event of a breach of substantial contract duties through ordinary negligence, also by representatives or vicarious agents of the seller, the seller is only liable for the applicable predictable, contractually typical and immediate average damages,
c) in cases of culpable damages to the client’s life and/or limb,
d) in cases of maliciously concealed defects and accepted guaranty for the nature of the product,
e) and in cases of Product Liability Act claims.
Our recommendations and advice concerning the usage and handling of our products are made to the best of our knowledge. We cannot accept any liability for our recommendations or advice because of the various handling and demands in utilization.
VIII. Statute of Limitations
Clients warranty and damages claims (VI. and VII.) are time-barred to one year from the date of delivery with exception of damages claims in VII. 2. This does not apply if the seller acts maliciously.
IX. Outlines, Drafts and other Preparatory Work
– that are ordered by the client- incur a fee if a subsequent contract is not closed.
1. The client is responsible for ensuring that all order documents, outlines, plans/design and samples are allowed to be reproduced unless the client clearly charges the seller with this task. The seller will inform the client of any known conflicting rights.
2. The seller retains all copyright and reproduction rights for their own outlines, drawings, plans, drafts, originals, films and in any process and for any such documents unless otherwise agreed upon even if a contract is not closed.
3. All production materials used remain the property of the seller even if the client is proportionally charged for these materials. There is no surrender obligation – also not for duplicates.
4. The period of record retention for external documents, manuscripts and other provided objects is 6 months from the final delivery of the order corresponding to the documents.
The seller reserves the right to apply their company text, company trade mark or company identification number to the all deliveries of any type pursuant to corresponding practice and specifications and the structure.
According to § 26 of the German Data Protection Act (German Civil Code I 1977 I page 201), the seller informs the client that the seller saves data needed for the completion of business.
XIII. Place of Performance, Court of Jurisdiction and Void in Part
1. Changes to the contract must be made in written form. Verbal agreements to abolish the written form are void by law.
2. Place of performance is Ingolstadt, Germany. The court of jurisdiction is Ingolstadt, Germany if the client is a businessman, legal person for public law or public separate estate, or if there is no inland court of jurisdiction for all contractual conflicts including check, bill of exchange and document processes. German law applies to the contractual relationship. UN sales law is excluded.
3. Should a single aspect of these general terms and conditions become totally or partly invalid, the validity of the other agreements remain unaffected.