I. Exclusive validity of the conditions of sale
A sale of products by GUTBERLET and therefore all related performances are per¬formed exclusively to the following conditions. Differing conditions of the customer thereof are only contained in the contract if GUTBERLET expressly confirms this in writing. Even if GUTBERLET does not expressly contradict this, this does not imply silent recognition, for example, by accepting an order. The subsequent conditions apply for present and also future sale transactions, even if GUTBERLET does not expressly refer to these.
With the issuing of an order to GUTBERLET, the customer accepts these general terms and conditions.
II. Realisation and content of the contract
1. Offers are always subject to confirmation. Orders received by GUTBERLET are only regarded as accepted if this was confirmed in writing.
Orders must contain the necessary information for the issue of an order confir¬mation and the production of the goods.
2. The content of the order confirmation, against which the customer has to imme¬diately object in the case of discrepancies or inconsistencies compared with his order, is exclusively authoritative.
3. Oral subsidiary agreements and covenants of the sales person from GUTBERLET are required to be confirmed in writing to be valid.
The same applies for the rescission of this written forni prerequisite.
4. Marginal discrepancies, through which the value and the efficiency of the article of sale are only insubstantially decreased, remain reserved.
5. Similarly, technical changes / improvements, which do not affect the intended use, remain reserved.
III. Prices
1. The prices are net-prices and do not contain VAT. They apply as far as they are not otherwise expressly confirmed in writing, from the production facility in Nürnberg; EXW Nürnberg, Incoterms 2000. The customer bears the delivery costs and additional expenses.
2. Should considerable parts of the cost calculation increase between the conclusi¬on of the contract and the delivery of the goods, then GUTBERLET reserves the right to adjust the prices by up to 5 %. Should a higher increase occur, both contractual parties pledge to undertake negotiations, for the difference exceeding 5 %, with the aim to establish new prices. Should these negotiations within a reasonable period of time lead to no result, GUTBERLET has the right to withdraw from the contract. Further claims are excluded.
3. Costs for printed documents, designs, clichés, samples and other preparatory work, which GUTBERLET has prepared or undertaken at the request of the customer, are being charged for with an invoice, even if an order is not placed.
4. With follow-up orders, GUTBERLET is not bound to the previous prices.
IV. Payment conditions
1. As far as not being otherwise confirmed, the payment is immediately due and has to be made within 30 days without discount from the date of the invoice or within 8 days with a 2% discount. Discounts are not granted if previous unpaid invoices exist.
2. By exceeding the date of payment, the usual bank interest rates for short-term credits, at the least interest rates in the amount of 8 % above the respective basic rate of the European Central Bank are raised. Further claims from GUTBERLET remain unaffected.
3. Customer bill of exchange and exchanges can only be accepted in payment after previously reached agreements, only on account of performance and only against reimbursement of realisation costs. These expenses are calculated from the due date of the payment obligation. The validity period of the bill of exchange or exchanges begins at the latest with the date of the invoice. Prolongations are excluded. Payments by cheque are only considered as fulfilment once they are cashed and conclusively and irrevocably credited. With the non-cashing of exchanges, cheques or other delays in payment by the customer, all obligations of the customer are immediately due, also those covered by ongoing exchanges.
4. The customer can offset or exercise a right of retention only on the basis of such with an indisputable or legally established claim.
5. Should a considerable deterioration in the financial circumstances of the customer occur, or is only known after the conclusion of the contract or the customer defaults with his payment obligation, then GUTBERLET can demand immediate payment of all outstanding claims, also those not yet due, and request a cash payment for all outstanding deliveries before delivery of the goods. Should the customer not comply with these demands, GUTBERLET can withdraw from the contract. Furthermore, it is entitled to collect goods in the possession of the customer at his costs. If GUTBERLET does not exercise these rights, this has no effect on their rights.
V. Delivery times
1. Lead time and delivery dates are not binding, unless definite delivery tines are expressly agreed upon. GUTBERLET reserves the right of delivery on the requisite that it is properly and punctually supplied by its preliminary suppliers, provided it has chosen them with the usual caution accorded to business transactions.
2. The lead time begins with the date of the confirmation of the order, but not before the receipt of all of the necessary documents and information for execution of tiie order; it ends with the day on which the goods leave the supplier or are put into storage due to an impossibility to despatch.
3. Should the customer request changes to the order after confirmation of the order, which affect the production time length, these are only possible as long as GUTBERLET can still introduce these to the framework of the already begun production procedure, and without affecting the calculation basis. The lead time then begins only after the confirmation of the change, which may contain a new term of delivery.
4. Should the delivery be delayed due to unforeseen hindrances, which GUTBERLET could not avert in spite of the reasonable caution following the circumstances of the case being applied, whereby it is regardless of whether they arose in their own enterprise or in external enterprises, upon which the production is depen¬dent - for example, force majeure, regulatory interventions, the event of war, transportation difficulties, strikes and lockouts, machine failures, delays in the delivering of considerable raw materials or lack of energy - then the delivery time increases by at least the length of time of the hindrance and a reasonable start-up phase. If the delivery becomes impossible, both contractual parties can withdraw from the contract. Claims for damages are excluded, except if GUTBERLET acted grossly negligent or intentionally. Paragraph 313 of the Bürgerliches Gesetzbuch (BGB) [German Chill Code] remains unaffected. [In the case of profound changes in circumstances after the conclusion of the contract, affecting the basis of the contract, and should the parties not include these, or include these with a different clause, in the contract if they had foreseen these changes, then an adaptation of the contract can be requested. Should an adaptation of the contract not be possible or partly unreasonable, the disadvantaged party may withdraw from the contract.]
5. Should the customer default in acceptance of individual parts of an order, GUTBERLET is not obligated to deliver further parts of this order. The sanie applies if the customer defaults in the acceptance of one of several orders. In the case of default in acceptance, the customer is obligated to reimburse GUTBERLET for the damages accrued through such.
6. With delay in delivery, the customer has to allocate a reasonable extension of time on the execution of the performance. After this expires, he can withdraw from the contract. Claims for damages due to delay in delivery or non-perform¬ance are excluded in each case, except if GUTBERLET acted grossly negligent or intentionally.
7. Part deliveries are permissible, provided the customer is not unreasonably disadvantaged through such.
VI. Packaging, despatch and transfer of risk
1. Special packaging and pallets requested by the customer are calculated at cost price and only returned on agreement. Excluded from this are exchangeable transporting pallets.
2. The despatch occurs, at the risk and cost of the customer, to the destination given by him. The transfer of risk is, unless otherwise agreed, always at the production facility of GUTBERLET. As far as no special agreements were made, GUTBERLET chooses the packaging, the despatch type sequence and the mode of despatch in its best discretion. The goods are insured by GUTBERLET only on request and on invoice from the customer.
3. Should the customer not collect the goods as according to the agreement with GUTBERLET, GUTBERLET will inform the customer of such and grant him a reasonable extended time period to remove the goods. After expiration of this period, GUTBERLET is entitled to put into storage or otherwise store the goods at the expense and risk of the customer. By storing, GUTBERLET fulfils its obli¬gation to deliver. Therefore, the risk is transferred to the customer.
VII. Retention of title
1. All delivered goods remain the property of GUTBERLET until fulfilment of all claims arising from the business relationship, indifferent as to from which legal ground, including the future arising or provisional claims, also from simulta¬neous or later concluded contracts. The same applies, if payments are made on specially identified claims or using a cheque or bill of exchange.
Our general terms and conditions continue on page 2
2. The customer may only sell the reserved goods in usual business transactions to his normal general terms and conditions and as long as he does not default. However, only under the conclition that the claims from the resale according to the numbers 4 to 6 are passed to GUTBERLET. He is not entitled to other disposals of the reserved goods.
3.A processing or handling, amalgamation or combination of the reserved goods with other goods by the customer always occurs for GUTBERLET. If this occurs due to a contract with a third party, the obligations thereof only affect the customer. If, with a processing or handling, amalgamation or combination of the reserved goods, the other object becomes the main object, GUTBERLET is entitled to co¬ownership of the new object in relation to the value of the reserved goods. If the customer further sells the new object, number 2 correspondingly applies for such.
4. Claims and all additional rights of the customer (also securities of a third party or surrogates for the claim against a third party) from the resale of the reserved goods are already now assigned to GUTBERLET. The assigned claims serve to the sane extent as security like the reserved goods. If the reserved goods are sold by the customer together with other goods, not delivered by GUTBERLET, then the assignment of the claim from the resale applies only to the amount of the value of the resale of the corresponding sold reserved goods. Should the customer accept the claim from the resale of the reserved goods in an existing current account relationship with his customer, then the current account claim is assigned to GUTBERLET in full. After effected balancing, the acknowledged account balance, which corresponds to the original current account claim, takes the place of the total current account claim, and is regarded as assigned up to the value of the amount, which the original current account claim mounted to.
5. The customer is entitled to collect claims from the resale. GUTBERLET is, however, in this respect entitled to a right of withdrawal, from which it only makes use of in the cases named in point IV.5..
6. The customer is only entitled to assignment of the claim, inclusive of the factorisation on factoring banks, with the prior written consent of GUTBERLET. On request from GUTBERLET, he is obligated to immediately inform the customer (third party) of the assignment and to give the necessary information and documents for collection. With payment by cheque, the property of these pass to GUTBERLET, as soon as the customer acquires it. Should payment occur through bill of exchange, then the customer assigns the rights accorded to him resulting from such. The transfer of these documents is thereby replaced that the customer stores them for GUTBERLET or, if he does not acquire the direct possession of them, herewith assigns his account claims against a third party to GUTBERLET in advance, he will hand over these documents with his endorse¬ment immediately.
7. If GUTBERLET asserts the retention of title, this is then only regarded as with¬drawal from the contract, if this is expressly stated in writing. The right of the customer to hold the reserved goods expires, if he does not fulfil his obligations from this or another contract.
8. From a distraint or other disturbance by a third party, the customer must imme¬diately inform GUTBERLET. Pledging or security transfers require their permis¬sion.
9. Should the value of the existing securities exceed the insured claims in total by more than 20%, GUTBERLET is obligated in this respect to release securities according to their choice on request of the customer.
10. The customer is obligated to gratuitously keep the goods under retention of title, to separately store or to label and insure these against normal dangers. The customer hereby assigns potential claims against third parties due to loss or damage of these goods to GUTBERLET.
11. The assignments are hereby assumed. An assignment of the claims against GUTBERLET requires their consent.
VIII. Commercial protection and copyright
1. The production initiated for the customer of designs, samples, clichés, litho¬graphs, tools and suchlike is being charged for in an invoice to the customer, as far as not otherwise agreed, even if, after issuing, they are of no more use within a supply contract. They remain, provided no other agreements are concluded, exclusive property of GUTBERLET. An account claim does not exist.
2. For a violation of patents, samples, nomenclature and similar rights resulting from the order by the customer, the customer is liable.
3. Proofs and release samples, and respectively other characteristics are to be reviewed by the customer for clause and other mistakes and respectively char¬acteristics and to be given back to GUTBERLET affirmed as ready to press and respectively approved.
4. GUTBERLET is not liable for mistakes overlooked by the customer. Telephonically transmitted changes require written confirmation.
5. The manuscripts, originals, print substrates, printed material, final drafting, slides, electronically transmitted artwork, amongst others handed over to GUT¬BERLET by the customer, which are external property, are kept at the risk of the customer. It is at the discretion of the customer to take out appropriate insurance.
6. The realisation of all commercial trade mark rights from GUTBERLET and re¬spectively partners and furthermore all Know-how is only permitted to the customer within the framework of an appropriate agreement. The customer is always bound to absolute confidentiality. This also applies for technical drawings, hand drawn samples, ingredients and such similar.
IX. Liability / Guarantee
1. The characteristics of the products, which differ from the standard products of GUTBERLET in technology or content due to changes requested by the customer, consist in that the products are sold unchecked and without appropriate tests, unless otherwise agreed.
2. The customer has to immediately check the goods after their arrival at the destination, even if a sample was forwarded. Should a defect be noticed, the customer has to immediately notify GUTBERLET of this occurrence.
3. The warranty period amounts to 12 months if stored and handled appropriately and in the unopened and originally packaged condition. Should the written noti¬fications of defects not arrive at GUTBERLET within eight days after arrival of the goods at the destination, then the goods are regarded as accepted. Non-obvious defects are to be rebuked in writing immediately after their identification detec¬tion at the latest within six months from delivery.
The goods from GUTBERLET are perishable goods with a limited durability. This determines as agreed characteristics of the goods, that GUTBERLET products have a minimum durability of six months from opening of the packaging and only with appropriate use, provided this does not already exceed the above mentioned period of one year.
GUTBERLET therefore strongly recommends the customer to print on the goods appropriate information as to their durability and to refer to the method of the appropriate use in an enclosure for each individual product.
Should GUTBERLET, due to a damage resulting from the disregard of the above mentioned obligation for information, directly or indirectly be claimed against by the end customers, then the customer is obligated to indemnify GUTBERLET from all of the damages resulting from such.
4. Excess deliveries or short deliveries by up to 5 % of the ordered requirement are to be accepted by the customer and are invoiced accordingly.
5. Defects of a part of the delivery can not lead to an objection to the whole delivery.
6. With duly notified defects, GUTBERLET, at its own choice, has to deliver a repla¬cement or repair it, at the exclusion of further warranty claims of the customer. Should the delivery of the replacement or rectification of the defects again pro¬vide cause for notification of defects, then the customer has a claim for reason¬able discount or, if this is not adequate to him, withdrawal from the contract. Further claims do not exist. Warranty claims are excluded, if the customer further processes, packages or sells the goods, after he has discovered or must have discovered the defect, unless he proves that the processing, packaging or sale was necessary in order to prevent greater damage.
7. The customer is obligated to give GUTBERLET the opportunity to examine the notified defect on the spot.
8. Should the customer not pick up the goods, against his obligation, he is obligated to compensate GUTBERLET for the resulting damage, including lost profit. This amounts to a lump-sum of 20% of the purchase price, whereby GUTBERLET is free to claim possible further damage. The customer is free to prove that the damage from GUTBERLET is actually less.
9. Further claims by the customer against GUTBERLET and their assistants are excluded, especially a claim for compensation for damages, which have not oc¬curred on the goods themselves, and consequential damage, unless GUTBERLET has dealt intentionally or grossly negligently. Should damage be caused by gross negligence or intention, the liability of GUTBERLET is limited to the damage foreseeable as a result of this breach of duty. GUTBERLET is liable for the breach of a non-cardinal obligation by an assistant only if the assistant acted intention¬ally.
This does not apply for damage from the infringement on life, body or health or a responsibility according to the German product liability legislation.
X. Other claims for damages
Claims for damages by the customer in all forms, for example due to encumbered impossibility to deliver, violations of duty, breach of a duty at the contractual ne¬gotiations and tortious act, are excluded, unless they are due to the intention or gross negligence of GUTBERLET. This applies for both direct and indirect damages (consequential damages).
XI. Applicable law, place of performance and place of jurisdiction
1. The mutual privity of contract determines to follow German law. The legislation
on international sale of goods (UN/CSG) of movable goods is excluded.
2. The place of performance for payment and delivery is the official place of busi
ness of GUTBERLET.
3. The place of jurisdiction for all disputes with businesspersons is the competent court for GUTBERLET.
4. These regulations also remain binding, if individual sections should be ineffec¬tive.