General Terms and Conditions of Delivery, Performance and Payment
§ 1 Scope of application
- These General Terms and Conditions ("GTC") shall apply to all contracts between mopack GmbH ("we") and the contractual partner ("Customer"), provided Customer is a business.
- General terms and conditions of Customer are hereby rejected, even if we perform services without condition, or accept payment, despite being aware of deviating or supplementary conditions of Customer.
- Within the framework of a continuous business relationship, our GTC shall also apply to all future transactions without the need for renewed reference thereto.
§ 2 Conclusion of contract, contents of contract
- Our quotations are subject to change and are non-binding.
- Formation of contract shall be subject to our written confirmation of order.
- If our confirmation of order deviates from Customer's order, the discrepancy shall be deemed approved unless Customer objects without delay.
- Deviations of contractual goods within the scope of what is customary in the industry are permissible, provided they are reasonable for Customer. This applies with regard to quality and quantity. Whether or not a deviation is customary in the industry shall be assessed in particular on the basis of the testing and assessment guidelines issued by GKV.
§ 3 Copyright, drawings, plans
- Contractual performance shall be free from defects of title insofar as no third party can assert any claim against Customer in this respect within Germany. Freedom from third party rights in other countries shall be subject to our written confirmation.
- Before placing any order, Customer shall check at its own expense that the goods do not infringe copyright or other third-party rights. Customer shall indemnify us against all claims by third parties for copyright infringement. In this respect it shall also bear the costs of legal action, even if they exceed the costs allowed under statute.
- Drawings, plans, drafts, etc. are and remain our property. Their preparation shall be remunerated separately. If a contract is concluded with Customer, remuneration shall be offset against the subsequent order value. Reproduction shall be subject to our prior consent.
- If we provide the aforementioned objects or documents, this shall not constitute a transfer or grant of rights (licence to use) to Customer.
§ 4 License fees
Customer shall pay licence fees, e.g. for the Duale System Deutschland, itself. Customer shall indemnify us against all claims arising therefrom. If Customer requires licence marks (e.g. the 'green dot') to be printed, it shall conclude a contract for such use.
§ 5 Prices
- Our prices are ex works (Incoterms 2020 EXW, mopack, Dettingen/Erms).
- All prices are net and do not include VAT applicable at time of delivery.
- Cost apportionment for auxiliary materials such as printing plates, film, copies, punching tools, etc. shall be invoiced separately. Customer shall not acquire any ownership or proportionate ownership of such materials. There shall be no right of expectancy.
- In the event of increased production costs, in particular as a result of wage increases or price increases for raw and auxiliary materials, we shall be entitled to increase prices, provided that more than three months have elapsed between conclusion of contract and delivery.
§ 6 Delivery
- Delivery shall be ex works in accordance with Incoterms 2020 (Incoterms 2020 EXW, mopack, Dettingen/Erms).
- Time of delivery shall be specified in confirmation of order. If the delivery time is not marked therein as binding, it shall be the likely and approximate delivery time.
- The delivery period shall commence with the dispatch of confirmation of order, provided Customer has provided us with the necessary documents and paid any necessary deposit.
- In the event of force majeure, the period for performance shall be reasonably extended, except where the force majeure and its duration have no influence on the period of performance. When assessing the reasonable extension of the period for performance, the duration of the impediment and a reasonable restart period shall be taken into account. Force majeure may also include events unforeseeable at the time of conclusion of contract, such as pandemics and epidemics, energy and raw material shortages, strikes, lockouts, official measures, terrorist attacks and war. At the onset of force majeure we shall inform Customer immediately and state the expected duration. If the force majeure lasts for more than three months continuously or if the delivery date is extended by more than four months due to more than one instance of force majeure, both Customer and we shall be entitled to withdraw from the contract. In the event of force majeure, claims for damages and further claims shall be excluded. The obligation of counter-performance shall lapse and any advance payments already made shall be refunded. If the circumstances of force majeure occur at a contractor and affect supply to us, this clause shall apply accordingly.
- Any deadline agreed for the performance of services shall be subject to complete and timely delivery by our contractual partners (condition of delivery to us), unless it is clear from the contractual agreement that we have assumed procurement risk or if there is an unlimited generic obligation. Furthermore our obligation to perform shall not lapse on the basis of the condition of delivery to us if we have not concluded a congruent covering transaction with our suppliers with regard to the performance to be rendered in relation to Customer or have ourselves culpably caused the non-performance of this congruent covering transaction. If performance of the congruent covering transaction is not available, we shall inform Customer immediately.
- We are entitled to make partial deliveries, provided this is reasonable for Customer and Customer does not suffer unreasonable disadvantage as a result.
- Claims for damages as a result of non-compliance with the deadline for performance shall be governed by § 13.
§ 7 Transfer of risk
The risk of accidental loss shall pass to mopack, Dettingen/Erms upon handover to the transporter. If Customer does not at time of delivery accept goods that have been declared ready for delivery, the risk of accidental loss shall pass to Customer at time of delivery.
§ 8 Delay in acceptance
If Customer does not accept the goods on time, it shall pay us 0.5% of the order value or of the value of the partial delivery for each week or part thereof up to a total of 5% of the order value or of the value of the partial delivery. Customer reserves the right to prove lesser loss.
§ 9 Payment
In the absence of written agreement to the contrary, all payments by Customer shall be made in euros at Customer's risk and expense, in particular with regard to timeliness. Payments are due within 30 days of invoice date. Payments made within 14 days of invoice date shall attract a 2% discount, provided that all previous due payments have been settled.
§ 10 Offsetting, right of retention
Customer is entitled to offset amounts payable against, and to exercise right of retention in the case of, undisputed or legally established claims.
§ 11 Notice of defects
- Customer shall inspect goods immediately upon receipt. Notice of defects discovered in the course of such inspection must be provided by Customer in writing within two working days.
- For hidden defects, Customer must give notice in text form within two working days of discovery.
- Notice of defects must describe the defect(s) precisely. Subject to consultation, photographs of the defective products must be taken at our request and sent to us.
- If notice of defect is not provided in writing within the specified periods, the goods shall be deemed approved, unless the defect(s) has/have been fraudulently concealed by us.
- For culpably made and unjustified notice of defect, Customer shall bear the costs incurred by us in connection therewith.
§ 12 Rights in the event of defect, statute of limitations
- We reserve right to remedy the defect by repair or by delivering goods free of defect, the choice to be at our discretion.
- Customer shall allow us a reasonable period of time of at least ten working days, commencing with Customer's request, to carry out subsequent performance.
- The costs of subsequent performance shall be borne by us on the basis of statutory provision. We shall not be liable for additional expense incurred by transfer of the products to a place other than their original place of use.
- Our right to refuse subsequent performance in whole or in part if statutory requirements are met remains unaffected.
- Parts replaced within the scope of subsequent performance shall become our property and be surrendered to us.
- Warranty claims based on defects shall, in deviation from § 438 para. 1 no. 3 Civil Code (BGB), expire within twelve months of transfer of risk, except in the case of fraudulently concealed defects or of an item that has been used for construction in accordance with its customary use and has caused the construction's defectiveness (§ 438 para. 1 no. 2 b) BGB).
- If a defect occurring after repair is the same defect or the consequence of defective repair, the limitation period for Customer's warranty rights pursuant to § 438 BGB shall not recommence.
- For claims for damages, §13 shall additionally apply.
- Statutory provision on seller's recourse pursuant to §§ 445a, 445b BGB shall remain unaffected.
§ 13 Liability
- In the event of death or of injury to body or health, we shall be liable without limitation.
- We shall be liable without limitation under the Product Liability Act (ProdHaftG).
- We shall be liable for culpable breach of material contractual obligation. Material contractual obligations are those that make performance of contract possible and on the observance of which Customer ought to be able to rely. Insofar as we do not violate essential contractual obligation intentionally or through gross negligence, our liability shall be limited to foreseeable damage typical for the contract.
- For intentional or grossly negligent breach of contractual obligations, we shall be liable without limitation.
- In the event of breach of contractual obligation that is simple negligence and does not affect essential contractual obligation, we shall not be liable.
- Otherwise liability for culpable breach of contractual obligation shall be limited to typical foreseeable damage.
§ 14 Support in product liability cases
- Customer shall not modify products with regard to safety-relevant aspects. In particular, Customer shall not change or remove warnings regarding improper use. In the event of breach of this obligation, Customer shall indemnify us against product liability claims by third parties, unless Customer is not responsible for the defect giving rise to liability.
- If we are obliged to initiate measures, in particular a product warning or product recall, Customer shall support us to the best of its ability.
- Customer shall inform us immediately in text form of any risks of which it becomes aware.
§ 15 Retention of title
- Products shall remain our property (goods subject to retention of title) until all claims arising from the business relationship have been paid in full.
- Customer is in the ordinary course of business authorised to dispose of goods that are subject to retention of title. If Customer has an open account, the reserved property shall serve as security for any balance in our favour. Customer hereby assigns to us by way of security any claims due to it from the use of the reserved goods by third parties, in particular via resale, together with all ancillary rights. We accept the assignment.
- Customer's processing or transformation of goods subject to retention of title shall always be on our behalf. If goods subject to retention of title are processed with other items not belonging to us to form a new item, we shall acquire co-ownership of the new item. The co-ownership share shall be calculated according to the value of the reserved goods in relation to the value of the other processed or transformed objects at the time of processing or transformation.
- If Customer combines or mixes goods subject to retention of title to form a uniform item and if one of the other items is to be regarded as the main item, we shall be entitled to pro-rata ownership of the resulting item. The co-ownership share shall be calculated according to the value of the reserved goods in relation to the value of the other combined or mixed goods at the time of the combination or mixing. Customer hereby transfers this co-ownership to us and we hereby accept it.
- Customer shall retain ownership until its customer(s) has/have paid the purchase price in full.
- Customer is authorised to collect receivables on our account until such authority is revoked by us or until payment to us has ceased. We shall revoke the authorisation to collect only if Customer is in default of payment, if Customer's financial situation deteriorates or if an application is made to open insolvency proceedings against Customer's assets.
- In the event of revocation of authorisation to collect, Customer shall provide us with the information necessary for collection of receivables.
- Customer shall inform us immediately in writing of any seizure by third parties of the goods subject to retention of title or of the items of which we have (co-)ownership, in particular of enforcement measures and of any attachment by third parties of our claims, and shall submit to us the documents necessary for the assertion of our rights.
- At Customer's request, we shall at our discretion release the securities to which we are entitled insofar as their value exceeds the claims to be secured by more than 10%.
§ 16 Prohibition of assignment
- Only with our prior written consent shall Customer assign to third parties rights and obligations under this agreement.
- Clause 1 shall not apply to assignment of claim for payment within the meaning of § 354a Commercial Code (HGB).
§ 17 Place of performance, place of jurisdiction, choice of law
- The place of performance for all obligations arising from Customer's order shall be our registered office in Dettingen/Erms.
- If Customer is a merchant, the exclusive place of jurisdiction shall be the court with jurisdiction for our registered office in Dettingen/Erms.
- In addition, we reserve the right to bring claims against Customer at its general place of jurisdiction.
- If Customer has its registered office or branch in Germany, this contract shall be governed by the law of Germany. In such cases, the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. If Customer has no registered office or branch in Germany, CISG shall apply exclusively.
§ 18 Data protection
Within the framework of the contractual relationship, we shall process Customer's data in compliance with the GDPR. Individual provisions on data processing can be found in our data protection policy.
§ 19 Severability clause
- Should one or more provisions of these GTC or parts thereof be invalid, the validity of the remaining provisions shall remain unaffected.
- In awareness of Federal Court of Justice (BGH) case law, under which a severability clause leads only to reversal of burden of proof, it is nonetheless the express intention of the parties to maintain the validity of the other provisions of these GTC under all circumstances.
- In the event of a gap in provisions, Clauses 1 and 2 shall apply mutatis mutandis.
Last amended: May 2021