Standard Terms and Conditions of Sale and Delivery of United Labels AG, Münster
Our Standard Terms and Conditions of Sale and Delivery shall have sole application. Our customers accept and acknowledge them on placing an order and agree that they shall also apply to future transactions even if no explicit reference is made to them but they were sent to the customer when we acknowledged an order. If an order is placed contrary to our Terms and Conditions of Sale and Delivery, they shall nevertheless apply, even if we raise no objection. Different terms and conditions shall therefore apply only if we have explicitly endorsed them in writing.
2. Offers, acknowledgements of orders
Our offers are subject to change without notice. Customers shall be bound by their orders, but they shall only be binding on us after we have acknowledged them in writing. Every order is binding on the customer, but is only binding for us after written acknowledgement, delivery or invoicing.
3.1 The only applicable prices are those stated in our order acknowledgement. Additional services shall be charged separately.
3.2 All prices are net prices without value added tax, which the customer shall pay in addition at the statutory rate.
3.3 Unless explicitly agreed otherwise, our prices apply ex works plus freight costs, packing, public charges and customs duties.
4. Delivery period, delivery
4.1 Delivery periods shall only be deemed agreed if they have been explicitly confirmed in writing. Delivery periods shall commence on the date of our order acknowledgement, but not before all details of the order have been fully clarified and any necessary certificates provided. If they cannot be shipped on time due to no fault of our own, the delivery periods shall nevertheless be deemed complied with if we have given timely notice that the goods are ready for dispatch. Compliance with delivery periods is subject to proper and prompt delivery by our own suppliers.
4.2 If we cannot comply with agreed delivery dates or delivery dates that we have specified, for reasons of force majeure or due to other circumstances for which we cannot be held responsible we may choose to either withdraw from the contract, to extend the delivery period by an appropriate amount of time or to reduce the delivery volume. Force majeure is particularly understood as war, strikes, machine failure, lack of fuel, electricity and raw materials or other events that adversely affect the normal course of production and/or distribution for an extended period. “Other circumstances” are particularly understood as failure to effect timely or proper delivery on the part of our own suppliers as long as this is not our fault. Failure to comply with delivery periods shall on no account make us liable for damages.
4.3 We have the right to effect part-deliveries and perform partial services if this is reasonable for the customer.
4.4 If the customer does not accept ordered goods, we shall have the right to store them at the customer’s risk and expense. In this case the purchase price shall be due for immediate payment.
5. Shipping, passage of risk
Subject to a written agreement to the contrary, the customer shall bear the transport risk even if we bear the transport costs under a separate written agreement. The risk shall pass to the customer as soon as the goods have left the distribution centre or the production plant. The risk shall also pass to the customer if the goods are ready for dispatch, but dispatch is delayed for reasons for which we cannot be held responsible. We are not obliged to insure the goods during transport.
6.1 Payments shall be made within 10 days of the invoice date. Whether payment has been made in good time shall depend on the date when the money is received. Bills of exchange and cheques shall not be deemed payment until they have been honoured and will be accepted without any obligation to present and protest them in good time.
6.2 We have the right to charge default interest at a rate of 8 percentage points above base rate per annum as from the date when payment becomes due, without prejudice to our right to claim further damages if the loss was in fact greater.
6.3 Customers may only withhold or set off payments against counterclaims if these counter-claims are undisputed or established through a final court judgement.
6.4 If the customer is late in making any payments, all outstanding debts owed by the customer shall be due for immediate payment. In the event of late payment by the customer, we shall also be entitled to demand advance payment or collateral before effecting any outstanding deliveries and, if the advance payment or the collateral has not been provided within two weeks, to withdraw from the contract without notice. This shall not affect any further claims.
6.5 If the customer’s credit standing should deteriorate after the contract has been formed or if the agreed terms of payment are not complied with, we shall have the right to withdraw from the contract even if part-deliveries have already been effected.
6.6 We have the right to assign the claims arising from our terms and conditions of business.
7. Reservation of title
7.1 All delivered goods shall remain our property (goods under reservation of title) until the settlement of all claims, irrespective of their legal basis, arising from the legal relationship underlying the delivery.
7.2 The customer is only entitled to process the goods under reservation of title, to combine and mix them with other items and to resell them if this occurs in the context of proper business operations and as long as the customer is not in default. The goods under reservation of title may not be handled in any other way. We must be given immediate notice of any attachments or any other seizures of the goods under reservation of title by third parties. All costs of intervention shall be borne by the customer unless they can be collected from the third party. If the customer allows its own customers to defer the payment of the purchase price, the customer shall reserve title to the goods in question on the same terms and conditions as we reserved title on delivering the goods. Otherwise, the customer is not authorised to resell the goods.
7.3 The customer hereby assigns to us its claims from the resale of the goods under reservation of title. These claims shall serve as collateral for goods of equivalent value under reservation of title. The customer is only entitled and authorised to resell the goods under reservation of title if it has been ensured that the customer’s resulting claims are transferred to ourselves.
7.4 If the customer sells goods under reservation of title together with other merchandise that we have not supplied at an overall price, the claims from the sale shall be assigned in an amount equivalent to the invoice value of the goods to which we have retained title.
7.5 If the assigned claim is included in a current account, the customer hereby assigns to us the part of the balance equivalent to the sum of this claim. This includes the final balance from the current account.
7.6 Until further notice the customer is authorised to collect the claims assigned to us. We have the right to revoke this authorisation if the customer does not properly comply with the payment obligations arising from our business relationship. If the preconditions for exercising the right of revocation have been met, the customer, at our request, shall immediately disclose information about the assigned claim and the identity of the debtors in question together with all details needed in order to collect the outstanding debt. Furthermore, the customer shall provide us with all accompanying documents and notify the debtor of the assignment. We shall also have the right to notify the debtor of the assignment.
7.7 If the total value of the collateral exceeds the value of the secured claim by more than 50%, the customer shall have the right to demand that we release parts of the collateral; which items of collateral are released shall be our choice.
7.8 If we enforce our reservation of title, this shall only be understood as a withdrawal from the contract if we issue an explicit written statement to this effect. The customer shall lose the right to possess the goods under reservation of title if the customer fails to comply with the obligations arising from this contract.
8.1 If there are any complaints concerning the goods they must be returned to us in the original packaging or packaging of an equivalent standard so that they can be examined. If a complaint is justified and made in good time, we shall rectify the defect by repairing the fault or delivering an item that is free of defects. We shall bear only those expenses incurred in subsequently rectifying the defect in this way.
8.2 We have the right to refuse to rectify the defect as provided for by law. We may also refuse to rectify the defect if the customer has not returned the defective goods at our request.
8.3 The customer may demand the rescission of the contract or a reduction in price, as provided for by law, but not before setting two reasonable deadlines for the rectification of the defect which have expired to no effect, unless the law does not require a deadline to be set for the rectification of the defect. If the contract is rescinded, the customer shall be liable for intentional acts and any act of negligence resulting in the deterioration and destruction of the goods as well as failure to derive benefits from them.
8.4 The provisions of clause 9 shall apply if the customer has any claims for damages or the reimbursement of expenses.
8.5 If the customer deals as a business, the customer must give written notice or notice by fax of any complaints.
8.6 The limitation period for claims due to defects is 12 months. This does not apply to any claims for damages made by the customer that are based on personal injury or damage to health due to a defect for which we are responsible or due to an intentional act or gross negligence on our part.
9. Limitation of liability
9.1 In the event of a breach of duty, a defective delivery or a tortious act, we shall only be liable for damages and for the reimbursement of expenses – subject to further contractual or statutory preconditions for liability – in cases of intent, gross negligence and breaches of fundamental contractual obligations due to slight negligence. (The breach of a fundamental contractual obligation is one that jeopardises the achievement of the contractual purpose.). However, in the case of the breach of a fundamental contractual obligation due to slight negligence our liability shall be limited to the damage that was reasonably foreseeable at the time when the contract was formed.
9.2 In cases of damage to property we shall be liable up to a maximum amount of EUR 1 million for each damaging event. In cases of damage due to default caused by slight negligence our liability shall be limited to 5% of the agreed purchase price.
9.3 The exclusions and limitations of liability set out in paragraphs 9.1 and 9.2 shall not apply if we have warrantied the quality and condition of an item within the meaning of section 444 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), in the case of the fraudulent concealment of a defect, injury to life, limb or health and in the case of mandatory liability under the Product Liability Act.
9.4 All claims for damages against us, irrespective of their legal basis, shall become time-barred by no later than one year after the goods have been delivered to the customer. In the case of tortious liability this shall be calculated from the time when the circumstances giving rise to the claim and the identity of the liable party became known or should have but did not become known due to gross negligence. The provisions of this paragraph shall not apply in the event of liability for intentional acts or gross negligence and in the cases mentioned in paragraph 9.3.
9.5 If the customer acts as an intermediary for the delivered goods and the end buyer is a consumer, the limitation period for the customer’s rights of recourse against us shall be governed by the statutory provisions.
10. Intellectual property rights and copyright
10.1 If any claims are made against the customer on grounds of an infringement of industrial property rights or copyright because the customer is using our goods or services as agreed by contract, we undertake to obtain rights that allow the customer to continue to use the goods. The precondition is that the customer immediately notifies us in writing of such third-party claims and that we have sole authority to take all legal defence measures and measures out of court. If it is not possible for the customer to continue to use our goods/services on reasonable commercial terms under these conditions, it is deemed agreed that, at our choice, we may either modify or replace the goods/services in order to rectify the defect of title or take back the goods/services and refund the purchase price paid to us.
10.2 The customer shall have no further claims on grounds of infringements of intellectual property rights or copyright if no fundamental contractual obligations have been breached and any breach of other contractual obligations was neither intentional nor caused by gross negligence. We shall have no obligations under paragraph 10.1 if infringements are caused due to our goods/services not being used as agreed by contract or being used together with goods/services other than those we have provided.
11. Place of performance, place of jurisdiction, applicable law
11.1 The place of performance for the obligations of both Parties is Münster.
11.2 The place of jurisdiction shall be the place where our company has its principal place of business.
11.3 This Agreement shall be exclusively governed by German law. The United Nations Convention on Contracts for the International Sale of Goods and the conflict of law principles of German international private law shall not apply.
11.4 If any individual clauses of these Terms and Conditions should be partially or completely void, this shall not affect the validity of the remaining clauses nor the remaining parts of such clauses.