- We execute orders only in accordance with these General Terms and Conditions.
- Deviating agreements are only valid if they are made in writing; verbal or telephone agreements are only valid after our written confirmation.
- These General Terms and Conditions shall remain binding even if individual parts should not be effective for any reason.
- Any deviations in the general terms and conditions of the purchaser or third parties shall not be binding on us, even if such terms and conditions have not been expressly objected to by us in the individual case or we have already performed acts of fulfillment.
II Offers and conclusion of contract
- Unless expressly agreed otherwise, all offers on our part are subject to change.
- The acceptance of orders by our freelance sales representatives or our employed travelers - even if set down in writing - shall only be deemed to be an offer by the Buyer to conclude a contract.
- Should circumstances arise on the Buyer's side which jeopardize an unchallenged acceptance or payment of the ordered goods, or should at least such an appearance exist, the Seller shall be free to cancel even already confirmed orders or to postpone their fulfillment until proper acceptance and payment are ensured. In such cases, a delay in delivery by the Seller cannot arise.
- Fixed-date transactions must be shown on our order confirmation. An order with a fixed date is not legally binding.
- The information, illustrations, drawings, samples, brochures, technical specifications and catalogs and other technical data contained in brochures, catalogs, advertisements and price lists or in the documents pertaining to the offer are non-binding. They are for descriptive purposes only and are intended only to give a reasonable idea of the goods described therein. The aforementioned details shall only become part of the contract if and to the extent that they have been expressly confirmed by us in writing as binding. If they are enclosed with or taken as a basis for our quotations/order confirmations and confirmed, they shall only be approximately binding. We reserve the right to make changes and improvements in design as well as deviations in quality, design and color customary in trade and materials.
- Prices shall only be binding if they have either been expressly offered as binding by the Seller or confirmed in a written order confirmation by the Seller.
- Notwithstanding the foregoing, in the absence of an express agreement to the contrary, the Seller reserves the right to increase the agreed prices by the pro rata additional cost of production in the event of any changes in the general economic conditions, in particular in the event of wage increases, price increases for raw and auxiliary materials, taxes, transport costs, disposal or recycling costs as well as
changes in the value of the goods.
- For deliveries below Euro 1000,- (excl. VAT) within Germany or Euro 1.000,- within the EU the prices are ex works. Deliveries exceeding this value will be made free domicile. Deliveries outside the member states of the European Union are made ex works.
- All prices are exclusive of cliché and design costs. The production of films and printing plates as well as typesetting costs will be charged extra. The clichés made will be charged proportionally and remain our property. The samples are the property of the seller and may not be used without his express permission
IV. Terms of payment
- Payments are understood to be 30 days net cash. In case of payment of the total invoice amount within 14 days from the date of invoice, 2% discount will be granted. The period begins with the day of issuance of the invoice.
- Payments shall be deemed to have been made when the seller has received the credit note from the financial institution.
- If the payment deadline is exceeded, the Buyer shall be in default without reminder. Subject to other rights, the Seller may charge interest on arrears in the amount of 5% above the applicable discount rate of the Austrian National Bank, but in any case at least 12% p.a.. In the event of default in payment, the Buyer undertakes to reimburse all costs, expenses and cash outlays incurred by the Seller, irrespective of the title on which they are based, and incurred by the Seller in pursuing its justified claims arising from this contractual relationship, in particular the costs of engaging a licensed collection agency in accordance with the tariff.
- Bills of exchange and checks are only accepted on account of performance. Payment by bill of exchange requires special agreement. The interest and costs for discounting or collection of bills of exchange and checks shall be borne and paid by the buyer.
- Non-compliance with the terms of payment due to circumstances which indicate reduced creditworthiness of the Buyer and which become known to the Seller only after the conclusion of the contract shall result in the immediate maturity of all claims even in the event of a deferral. If in this case bills of exchange have not yet been honored, the Seller shall nevertheless be entitled to immediate payment in cash.
- Changes in the assessment of the Buyer's creditworthiness, e.g. exceeding a certain payment term, sluggish payment, receipt of unfavorable information, etc., entitled the Seller to demand security or advance payment prior to performance, even if this was not initially agreed.
- The purchaser may only offset claims we have against it or effectively assert a right of retention if its counterclaim has been legally established by a court of law or is undisputed.
- Unless otherwise agreed in writing, the mode of delivery shall be left to the discretion of the seller. The shipment is at the risk of the buyer.
- If no delivery date is agreed, the delivery period shall be deemed to be the period between the date of the order confirmation and the date of notification of readiness for delivery to the purchaser on the basis of the agreed period. In any case, the delivery period shall not commence until after approval of the proofs by the Purchaser and receipt of all working documents required for the execution of the order.
- All information about delivery time is non-binding.
- If the delivery is not made in due time, the purchaser shall grant us a grace period of at least 21 working days. All reminders and setting of deadlines by the purchaser must be in writing to be effective.
- In the absence of any other agreement in the order confirmation, a period of no more than six months with monthly call-offs shall be assumed for call-off orders. If a partial delivery is not accepted at the stipulated time, it may be stored at the Buyer's expense and risk and immediately invoiced in full, or the Seller may deliver the goods without prior notice. Any additional costs incurred as a result of the call order will be invoiced separately to the Buyer.
- In the event of default in acceptance on the part of the Buyer, the Seller shall be entitled, at its discretion, to store the goods not accepted at its own premises or in a public warehouse, in each case at the Buyer's expense.
- Preventive clause - In the event of force majeure, such as natural disasters, etc. measures of the public authorities, operational disruptions, traffic difficulties, strikes, lockouts and other business interruptions, etc., the seller is wholly or partially released from compliance with its delivery obligation, without the buyer from this claims arise or he can cancel the order placed.
- Transport damages can only be acknowledged if these were noted by the buyer on the delivery papers when taking over the goods.
- If, through no fault of our own, transport by the intended route or to the intended place within the intended time becomes impossible, we shall be entitled to deliver by another route or to another place; the additional costs incurred shall be borne by the Buyer. The buyer shall be given the opportunity to comment beforehand.
- If the purchaser declares prior to production of the ordered goods that he does not wish to accept them, he shall pay 40% of the contract value as compensation for lost profit and costs incurred; both parties to the contract reserve the right to prove higher or lower damages.
- Storage of rotogravure cylinders: We store rotogravure cylinders with customer motifs for a maximum of 14 months after the last printing and then release them for re-engraving. Should the buyer wish to extend the storage period, an extension can be agreed against payment.
VI. recycling contribution - ARA
- Unless otherwise expressly agreed, the Seller shall license all packaging of the Product which is placed on the domestic market through the ARA system under license number 880 or any other recycling company recognized by the Federal Ministry.
- At the request of the buyer, we also release the goods, which were determined by the Federal Ministry as packaging via the ARA - system by means of our service contract No. S 80173 or another recycling company recognized by the Federal Ministry.
- If the purchaser de-obligates the product or the packaging itself via a system of its choice, it must provide us with written confirmation of this without being requested to do so.
- We shall be indemnified and held harmless if the buyer fails to provide us with this confirmation without being requested to do so, or if the ARA or the Federal Ministry makes claims against us because the buyer fails to meet the obligation to pay a levy for the recycling.
- Export products are not licensed.
- Any deviations of the order confirmation from the order must be objected to in writing within six days of the issue of the order confirmation. Otherwise, the contents of the order confirmation together with the terms of delivery shall be deemed agreed.
VIII. Claims for defects - Complaints
- The buyer is obliged to check the products delivered by us for defects immediately upon receipt. Within the scope of this inspection, corresponding random samples are also to be taken.
- In the absence of detailed written instructions on the part of the purchaser, orders shall be executed using materials customary in the industry and in accordance with known manufacturing processes. Therefore, no complaints can be made with regard to the behavior of the packaging material in relation to the filling material and vice versa, unless explicit and detailed attention has been drawn to special properties of the filling material and a written statement by the seller has been provided in this respect.
- Due to the fact that it is a mass product, the buyer agrees to accept minor deviations from the order and not to consider them as defects. Therefore, a reject rate of 3% of the total delivery does not constitute grounds for complaint. Manufacturing tolerances of +/-4mm in width, +/- 6mm in length, +/-4mm in depth and manufacturing-related deviations in material quality, printing color, coloring as well as printing position tolerances of +/- 3mm in length and +/- 4mm in width do not provide grounds for complaint. In the case of bag applications such as door holes or window punching, a tolerance of +/-2mm in width and +/-4mm in length applies. Weight per unit area deviations of +/- 10 % for plastics and paper are not grounds for complaint. A color deviation is possible in the printing process due to the production process.
- Mengentoleranz von +/- 20 % für Kleinmengen (< 50.000 Stk. Beutel oder 30.000 lfm.), sowie Toleranzen von +/- 10 % bei größeren Fertigungsaufträgen ( > 50.000 Stk. Beutel oder 30.000 lfm.) sind produktionstechnisch vorgegeben. Sollte der Käufer geringere Toleranzen wünschen, ist dies unbedingt schriftlich in der Auftragsbestätigung zu vermerken.
- For materials provided by the customer, such as labels, an additional 15% of material must be provided over and above the quantity ordered.
- Wir verwenden für den Druck handelsübliche Druckfarben, die hinsichtlich Abriebfestigkeit, Lichtechtheit, Wasserfestigkeit den handelsüblichen Bedingungen entsprechen. Stellt der Käufer besondere Ansprüche an die Farbe, wie z.B. Restlösemittelgehalt < 20 g/m², Reibbeständigkeit, besonderen Glanz, Siegelfähigkeit der Farbe usw. so hat er uns hierauf bei Auftragserteilung ausdrücklich und schriftlich hinzuweisen.
- If the purchaser uses the ordered materials for foodstuffs to be packaged, he must inform us expressly and in writing of the food safety requirements. The print must never be brought into direct contact with the food.
- If the purchaser receives proofs, he must check them carefully and approve them for printing by signing the proof. Warranty claims and claims for damages by the purchaser against the seller are excluded for incorrect text, typesetting and motif arrangements as well as errors left in the text that were not objected to by the purchaser in the approved galley proofs, insofar as there is no grossly negligent or intentional behavior on the part of the seller or his vicarious agents.
- If the Buyer is an entrepreneur, the following shall apply:
- The warranty rights of the Buyer presuppose that he has duly complied with his obligations to inspect and give notice of defects pursuant to §§ 377, 378 of the Austrian Commercial Code (UGB) and the following provisions. The application of the presumption rule according to § 924 ABGB is expressly excluded.
- Complaints about obvious defects which are not asserted in writing immediately, but at the latest within one week after receipt of the goods, with a precise description of the defect, cannot be taken into account. Defects which were not obvious at the time of delivery and which could not be recognized despite fulfillment of the obligations of §§ 377, 378 UGB (Austrian Commercial Code) must be asserted in writing immediately after knowledge, but no later than 2 weeks after knowledge, with a precise description of the defect in order to preserve the warranty rights - with immediate cessation of any processing or treatment.
- The defective items shall be kept ready for inspection by us in the condition in which they are at the time of the discovery of the defect. We shall have the right to satisfy ourselves on the spot as to the justification of the complaints. Reservations in the waybills do not constitute proof of defects. If defects are due to the fact that the buyer has given inaccurate or incorrect information about the intended use or the loading of the material, we shall be released from any warranty obligation.
- If the goods are shipped by us directly to a third party, the Buyer shall work towards ensuring that the obligation to give notice of defects agreed upon in the relationship between us and the Buyer is also bindingly agreed upon in the relationship between the third party and the Buyer. The buyer must inform us immediately in writing of any complaint by the third party and forward the complaint to us."
- In the event of a justified, timely notice of defects, we shall provide a warranty for the agreed quality of the goods delivered by us in accordance with the rules of warranty law and in accordance with the following provisions.
- In the event of proven material defects, we shall provide warranty by means of subsequent performance in such a way that, at our discretion, we provide the purchaser with new, defect-free goods (subsequent delivery) or remedy the defect (subsequent improvement).
- In the event of rectification, the Buyer shall, at our request, specify notifications of defects and submit written reports of defects and provide other data suitable for analyzing the defect. We shall bear the costs of rectification insofar as these are not increased by the fact that the delivery item has been moved to a location other than the contractually intended location after delivery.
- If the subsequent performance according to the above paragraphs 2 and 3 remains unsuccessful, the purchaser may withdraw from the contract or reduce the remuneration. If there are only minor defects, however, the purchaser shall not be entitled to withdraw from the contract. In any case, the exercise of the right of withdrawal shall be subject to the fruitless expiry of a period of reasonable length set in writing, unless the setting of a deadline is dispensable by law. If the purchaser chooses to withdraw from the contract due to a legal or material defect, he shall not be entitled to any additional claim for damages due to the defect. In the event of withdrawal, the purchaser shall be liable for deterioration, destruction and unaccrued benefits not only for his own due diligence, but also for any negligence on his part.
- Statements on our part about the quality of the goods shall not be deemed to be an assumption of a guarantee for the quality, unless the parties expressly agree on this. If the purchaser is an entrepreneur, public statements, recommendations or advertising shall not constitute a statement of the quality of the goods.
- If the warranty is a recourse of the Buyer after the Buyer has been successfully claimed under the provisions of the exclusion of recourse, the recourse claims under the general recourse rules shall remain unaffected. The application of § 933 lit b ABGB is expressly excluded.
X. Damages and product liability
- Improper storage by the buyer excludes any compensation.
- Claims for damages arising from positive breach of contract, culpa in contrahendo and tort are excluded both against us and against our vicarious agents
or persons employed in the performance of our obligations, unless we or our vicarious agents or persons employed in the performance of our obligations have acted with intent or gross negligence. This exclusion of liability applies in particular to damage caused by the fact that the abrasion resistance, friction resistance, sealability, gloss or residual solvent values of the inks used are insufficient.
- The compensation for damages can in no case exceed the value of the delivered goods. Furthermore, any compensation for damages is additionally limited to such damages that can be brought under insurance cover by the Seller, so that in particular the liability for loss of profit of third parties as well as the liability for legal costs are excluded from the outset.
- In the case of subcontracted orders, liability shall be limited only to the share of the proceeds paid by us. The only exception is gross negligence.
- Compensation for consequential damages is excluded.
- Liability for slight negligence is expressly excluded.
- The contracting parties expressly exclude any protective effect of this contract in favor of third parties, so that any damages incurred cannot be asserted against the seller.
XI. Copyrights, industrial property rights and ownership rights
- If copyrights and / or industrial property rights arise for us as a result of the development and execution of an order, these shall not be transferred by the sale of the delivery item. This shall also apply if the purchaser bears a share of the costs for the development. We are in particular entitled to use these copyrights and/or industrial property rights also for orders of third parties.
- The items produced by us, including designs, materials, drawings, films, printing plates, rollers, tools, etc. remain our property. This shall also apply if we are reimbursed pro rata costs for this by the purchaser.
- Unless otherwise agreed, we shall be entitled to visibly affix our company logo or an identification number to the delivery items manufactured by us.
- For samples, sketches, drafts, films and the like which are expressly ordered or commissioned by the Buyer, the remuneration agreed for this purpose shall be paid even if the main order for which the samples, sketches, drafts, films and the like were produced is not placed.
- The Buyer shall be responsible for checking whether the documents provided by the Buyer do not infringe any third-party rights, in particular copyrights, industrial property rights (design patents, patents, utility patents, trademarks). If claims are asserted against us by third parties due to the use or reproduction of the documents and templates provided by the Buyer on the grounds of infringement of copyrights and/or industrial property rights or on the grounds of infringement of the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb), the Buyer shall support the Seller in the defense against such infringement and shall reimburse us for any and all damages (including attorneys' fees and litigation costs) incurred by us as a result.
XII Retention of title
- The Seller reserves the right of ownership to the goods delivered by him and also to the new item resulting from any further processing until the purchase price has been paid in full or checks and bills of exchange have been honored.
- The Buyer shall be entitled to dispose of the goods in the ordinary course of business, in particular to process and sell them. In the event of resale of the goods delivered under retention of title before final payment, the Buyer declares that he hereby assigns the resulting purchase price claim against third parties to the Seller in full. The Buyer undertakes to expressly refer to this assignment on the invoices to third parties.
- Any extraordinary disposal of the delivered goods, e.g. pledging, transfer by way of security, etc., shall only be permitted with the express consent of the Seller. The Buyer shall be obliged to notify the Seller immediately of any seizure by third parties of the goods delivered under retention of title (e.g. pledges, etc.), otherwise he shall be liable for damages.
- All work aids manufactured by the Seller or by a third party on its behalf shall remain the property of the Seller. The costs incurred by the Seller for this purpose shall be charged to the Buyer. In this context, clichés, punching tools and all tools required for the production of clichés or the documents produced in the course of their production shall also be deemed to be working aids.
- Additional retention of title:
- The Buyer is revocably entitled to process the items delivered by us in the ordinary course of business or to combine them with other items. The processing or combination shall be carried out for us as manufacturer, so that we acquire ownership of the items resulting from the processing or combination, without any obligation on our part arising therefrom. Insofar as our ownership of the goods is lost as a result of the processing, the purchaser shall be obliged to grant us co-ownership of the newly created item insofar as he himself is (co-)owner.
- The Buyer shall be entitled to resell the delivered goods or the products resulting therefrom due to processing, mixing or combining in the ordinary course of business, but only with reference to the retention of title.
The Buyer's claims from a resale of the goods subject to retention of title shall already now be assigned to us in the amount of the final invoice amount (including VAT) as security for all our claims arising from the business relationship, irrespective of whether these goods are sold without or after processing and whether they are sold to one or more buyers. If the goods subject to retention of title are sold by the buyer together with other goods not sold by us, the claim from the resale shall be assigned in proportion to the invoice value of the other goods sold. In the event of the sale of goods in which we have co-ownership shares in accordance with item 4 of this paragraph, a part corresponding to the co-ownership share shall be assigned to us. The same shall apply if the reserved goods alone or together with other goods are the subject or partial subject of a contract for work and services, a contract for work and materials or a similar contract.
- The Buyer shall not be entitled to dispose of the goods in any way other than the aforementioned. In particular, he shall not be authorized to assign the receivables, including the sale of receivables to factoring banks, without our prior written consent. We give our consent to the sale of receivables to a factoring bank without the possibility of chargeback (genuine factoring) subject to the condition precedent that the Buyer immediately forwards to us the payments made to it by the factoring bank.
- The purchaser is authorized to collect the assigned claims as long as he meets his contractual payment obligation towards us in due time. Furthermore, we may expressly revoke the collection authorization if - the Buyer fails to honor a bill of exchange when due or - the conditions of the right to refuse performance in our favor pursuant to IV: Sections 5 and 6 exist. With regard to the collection of the claims, the Buyer shall be deemed to be a trustee with the express obligation to pay the counter-values less his earnings. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the purchaser meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, as long as no application for the opening of insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the buyer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- We undertake to release the securities to which we are entitled at the Buyer's request to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%; the choice of the securities to be released shall be ours.
- If the Buyer intends to ship the delivered goods abroad, he shall notify us thereof in writing without undue delay. At our request, the Buyer shall grant us a security interest which comes closest to the aforementioned retention of title under the legal system of the destination. The buyer shall take all measures necessary to establish and maintain such rights.
XIII Right of withdrawal
- Events which change the business basis of the contract in whole or in part, may they apply to the seller or the buyer or their suppliers, entitle the seller to adjust the contract in whole or in part to the changed circumstances or to dissolve or withdraw from the contract altogether, excluding claims for compensation.
- In the context of a contract concluded with an entrepreneur, we are granted a right of withdrawal in such a way that we can withdraw from the concluded contract within three days in the event that we judge the credit report to be insufficient or our purchase price claim is not insurable.
XIV Place of performance and jurisdiction
- The place of performance as well as the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the District Court of Vöcklabruck. This exclusive place of jurisdiction shall also apply if the Buyer does not have a general place of jurisdiction in Austria or if the place of residence or habitual abode is not known at the time the action is brought.
- The contractual relationship is subject to Austrian law. The application of the Uniform UN Sales Law (United Nations Convention on Contracts for the International Sale of Goods-CISG) as well as the application of the IPR (Federal Act on Private International Law) is excluded.
Status: Lenzing, May 21, 2012
Jodl Verpackungen GmbH
Attersee Bundesstraße 7