Terms and Conditions
General Terms and Conditions and Customer Information
I. General Terms and Conditions
§ 1 Scope of Application – General
(1) Our general terms and conditions of delivery (GTC) apply to the provision of deliveries and services – including information and advice – to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons who acquire the goods or service for commercial or professional use, as well as to legal persons under public law or special funds under public law.
(2) Our GTC shall apply exclusively; we do not recognize any terms of the customer that conflict with or deviate from our GTC unless we have expressly agreed to their validity. Our GTC shall also apply if we carry out deliveries and services without reservation in the knowledge of terms of the customer that conflict with or deviate from our business terms.
(3) Wherever reference is made below to text form, this includes both written form and the form described in Section 126b BGB, i.e. in particular fax or email.
(4) Wherever reference is made below to claims for damages, this shall equally include claims for reimbursement of expenses within the meaning of Section 284 BGB.
§ 2 Conclusion of Contract – Declarations – Rights – Prohibition of Assignment
(1) The customer’s order constitutes a binding offer. Any offers or cost estimates previously submitted by us are non-binding; they are invitations to place orders. We may accept orders or purchase orders within fourteen calendar days of receipt by us, unless the customer must regularly also expect later acceptance by us (Section 147 BGB). This also applies to repeat orders by the customer.
(2) Our acceptance of an order or purchase order is subject to the condition that any outstanding payment arrears of the customer are settled and that a credit check carried out on the customer does not reveal any negative information. If delivery or performance takes place within the customer’s binding period (see paragraph 1 sentence 2), our acceptance of the order may be replaced by our delivery, whereby dispatch of the delivery shall be decisive.
(3) Oral promises made by our representatives or other assistants require our written confirmation.
(4) Legally relevant declarations and notices which the customer must submit to us or to a third party must be made in text form.
(5) We reserve all ownership rights and copyrights to illustrations, drawings, data, calculations, samples, and other documents relating to our products and services. This also applies to written documents designated as confidential. The customer requires our express written consent before using or passing them on to third parties; otherwise, both are prohibited. The documents referred to in sentences 1 and 2 must be returned to us if an order based on them is not placed with us.
(6) We reserve the right to secure all business transactions by means of credit insurance and to transmit the necessary data of the customer and the contractual relationship to the insurer.
(7) Contractual claims may not be transferred by the customer without our written consent, unless Section 354a of the German Commercial Code (HGB) applies.
§ 3 Subject Matter of Contract and Performance – Quality of Goods
(1) Information and statements regarding our products and services made by us or our sales agents are based exclusively on our previous experience. Unless expressly agreed otherwise, in particular in the case of delivery of specifically requested or detailed described or specified goods, we do not warrant that the products delivered by us and/or our services are suitable for the customer’s procedures, applications, and other purposes.
(2) We only assume an obligation to provide advice by virtue of a separate consulting agreement in text form.
(3) Information provided by us regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations thereof (e.g. drawings and illustrations) are only approximately authoritative and are to be understood as average values, unless exact conformity is required for usability for the contractually intended purpose. Errors in printed catalogs, product descriptions, and price lists are reserved.
(4) The characteristics of samples or specimen copies shall only become part of the contract if expressly agreed in text form.
(5) Except for guarantees expressly assumed by us in the contract, no further guarantees shall exist. In particular, descriptions of the subject matter of the contract or the scope of delivery and performance, specifications of properties, and technical data are not to be understood as guarantees of quality. A guarantee shall only be deemed assumed by us if we have designated a property and/or performance result at least in text form as “legally guaranteed”.
(6) The customer may assert quality claims regarding the ordered goods only to an extent that is reasonable or customary in trade for goods in the price range of those ordered.
(7) In the case of the delivered goods, deviations customary in trade and deviations resulting from legal regulations or representing technical improvements, as well as replacement of components by equivalent parts, are permissible and do not entitle the customer to complaints or claims against us, provided they do not impair usability for the contractually intended purpose and any agreed specifications are complied with. The foregoing also applies to sales based on a goods sample.
§ 4 Special Conditions for Films and Products Made Therefrom
(1) We reserve the right to deliver excess or short quantities within a scope of 10% of the agreed quantities. The customer shall be invoiced for the actual delivery quantity. .
(2) We do not owe abrasion resistance of the printing inks unless the application of a clear lacquer coating has been agreed.
(3) The customer cannot expect the colors to be lightfast.
(4) Minor color deviations compared with originals submitted by the customer are permissible.
(5) For the delivery of polyethylene products, the “GKV Testing and Evaluation Clauses for Polyethylene Films and Products Made Therefrom” (issued by IK Industrievereinigung Kunststoffverpackungen e.V.) shall apply, particularly with regard to deviations in dimensions or weight, in the version valid at the time of conclusion of the contract. We will provide these provisions to the customer in text form upon request.
(6) Due to the typical properties of polyethylene, a certain degree of adhesion of the film webs and the products made from them may occur, in particular if the goods are stored for a long time in packaged condition or in damp rooms.
(7) Films made from regenerated material (recycled raw materials) and products made therefrom may show variations from batch to batch in quality, color, purity, odor, and physical properties (in particular with regard to tear resistance, shrinkability, or slip behavior). Such deviations are permissible provided that the usability for the customer is not completely eliminated.
§ 5 Drafts and Printing Plates
(1) Drafts, final artwork, printing plates, and tools shall be charged by us at cost price. If they are produced by us, they remain in our custody and cannot be demanded for surrender if they have only been paid for proportionately by the customer.
(2) We require one or more rubber printing plates for each printing color.
(3) Upon request, we will produce proof prints which must be checked carefully by the customer. Changes are only possible if notified without delay. If the customer does not provide a binding print sketch, the print position will be determined by us to the best of our knowledge.
§ 6 Prices
(1) The prices apply to the agreed scope of performance and delivery. Additional or special services shall be charged separately.
(2) Prices are in euros ex works plus packaging, statutory VAT, and in the case of export deliveries customs duties as well as fees and other public charges.
(3) If delivery or performance takes place more than four months after conclusion of the contract and if, in the meantime, the costs for wages, material or product manufacture, material or product procurement, packaging material, freight, taxes, customs duties, or charges have increased compared to the time of conclusion of the contract, then the agreed price may be unilaterally adjusted by us in accordance with the influence of the aforementioned cost factors. If the price changes by more than 20% compared with the contractually agreed price, the customer shall have the right to withdraw from the contract, provided that we adhere to a price increase request despite notification by the customer of the intention to withdraw.
§ 7 Terms of Payment
(1) Unless otherwise specified or agreed by us, remuneration is due in full immediately upon receipt of the goods or other service without deduction of any discount. If we grant a cash discount in an individual case, this requires that all earlier due invoices have been settled.
(2) The customer shall only be entitled to rights of set-off if its counterclaims have been legally established, are undisputed, or have been recognized by us.
(3) A right of retention by the customer is excluded unless the customer’s counterclaim arises from the same contractual relationship and is undisputed or has been legally established.
(4) If the customer defaults on payment of a due claim, all further claims that we have against the customer arising from other legal relationships and that have already arisen shall also become immediately due; in this case, payment terms, deferrals, or similar payment aids granted by us shall lapse. In addition, in this case we shall be entitled to withhold services still to be performed by us.
(5) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the customer’s lack of ability to perform (e.g. by application for the opening of insolvency proceedings), we shall be entitled, in accordance with the statutory provisions, to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), we may declare withdrawal immediately; the statutory provisions concerning the dispensability of setting a deadline remain unaffected.
§ 8 Performance and Time of Performance
(1) Binding dates for deliveries or services require our written confirmation for evidentiary purposes. If cooperation by the customer is necessary, an agreed performance period shall not commence before the customer has fulfilled this obligation. Compliance with payment agreements also constitutes a duty of cooperation in this sense.
(2) We are entitled to make partial deliveries if
- the partial delivery is usable for the customer within the framework of the contractual intended purpose,
- delivery of the remaining ordered goods is ensured, and
- the customer does not incur significant additional effort or additional costs as a result (unless the customer agrees to bear such costs).
(3) If, for reasons for which we are not responsible, we do not receive deliveries or services from our suppliers or subcontractors despite proper covering transactions, not correctly, or not on time, or if events of force majeure occur, we shall inform the customer in due time. In such case we shall be entitled to postpone the delivery or service for the duration of the hindrance or to withdraw wholly or partially from the contract with respect to the part not yet fulfilled, provided we have complied with our aforementioned duty to inform. Force majeure shall include strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks for which we are not responsible, operational disruptions for which we are not responsible, e.g. due to fire, water, or machine damage, and all other hindrances which, from an objective point of view, have not been culpably caused by us.
(4) If a delivery or performance date or a delivery or performance period has been agreed as binding and is exceeded by more than four weeks due to events pursuant to paragraph 3 above, or if in the case of a non-binding performance date adherence to the contract is objectively unreasonable for the customer, the customer shall be entitled to withdraw from the contract with respect to the part not yet fulfilled. Further rights of the customer, in particular claims for damages, shall not exist in this case.
§ 9 Delay on the Part of the Contractor
(1) Insofar as the assertion of rights by the customer requires the setting of a reasonable grace period, this shall be at least two weeks.
(2) If we are in default, our liability for compensation of damage caused by delay shall, in the case of simple negligence, be limited to 5% of the contract price. Further claims of the customer remain unaffected.
(3) Contractual penalties for delayed delivery or performance are excluded.
§ 10 Responsibility in Generic Obligations and Withdrawal
(1) Insofar as the item to be delivered is determined only by generic characteristics, we shall only be liable for compensation of damage if we cannot prove that we are not responsible for the non-performance, delayed delivery, or defective performance. In addition, the provisions of Section 14 of the GTC shall apply.
(2) The customer may withdraw from the contract within the framework of the statutory provisions only if we are responsible for the breach of duty.
§ 11 Performance – Passing of Risk – Acceptance
(1) Delivery shall be ex works, which is also the place of performance. At the customer’s request and expense, the goods shall be shipped to another destination (sale involving shipment). Unless otherwise agreed, we shall be entitled to determine the type of shipment ourselves (in particular transport company, shipping route, packaging).
(2) The shipment shall only be insured by us against theft, breakage, transport, fire and water damage, or other insurable risks at the express request and expense of the customer.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer no later than upon handover. In the case of sale involving shipment, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass already upon delivery of the goods to the forwarding agent, carrier, or other person or institution designated to carry out the shipment.
(4) If acceptance has been agreed, this shall be decisive for the passing of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply accordingly to agreed acceptance. Handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
§ 12 Delay on the Part of the Customer
(1) If the customer is in default of acceptance, fails to perform an act of cooperation, or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we shall charge lump-sum compensation in the amount of 0.25% of the invoice amount of the delivery items to be stored per elapsed week, beginning with the delivery period or – in the absence of a delivery period – with notification that the goods are ready for dispatch. Proof of higher damage and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be permitted to prove that we have incurred no damage at all or only substantially less damage than the above lump sum.
(2) If acceptance of the goods or their shipment is delayed for a reason for which the customer is responsible, we shall be entitled, after setting and expiry of an additional period of fourteen days, at our option to demand immediate payment of remuneration, withdraw from the contract, or refuse performance and demand damages instead of the entire performance. In the case of the damages claim regulated above, we may demand 10% of the agreed net remuneration for the costs incurred through processing the order and for lost profit. The customer shall be permitted to prove that we have suffered no damage at all or that it is substantially lower than the lump sum.
§ 13 Claims in the Event of Defects (Warranty) – Limitation Period
(1) The customer must observe the obligations under Section 377 HGB. Defects recognizable upon delivery must also be reported to the transport company and the recording of the defects must be arranged by it. Notices of defects must contain a description of the defect that is as detailed as possible. Failure to give notice in due time excludes any claim by the customer.
(2) We assume no liability for public statements, recommendations, or advertising by a manufacturer other than us or by other third parties; they do not constitute a contractual statement of quality of the goods.
(3) Upon commencement of processing, treatment, combination, or mixing with other items, the delivered goods shall be deemed approved by the customer as being in conformity with the contract. The same applies in the event of onward dispatch from the original destination.
(4) Claims by the customer for material defects are excluded for the consequences of incorrect use (in particular in the case of assembly not in accordance with the state of the art or assembly contrary to the assembly instructions), natural wear and tear of the goods, excessive use, unsuitable operating materials, as well as the consequences of physical, chemical, or electrical influences that do not correspond to the intended, average standard influences.
(5) Claims by the customer for reimbursement of expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded to the extent that the expenses increase because the goods delivered by us were subsequently taken to a place other than the customer’s place of business, unless the relocation corresponds to their intended use.
(6) Any recourse claims of the customer in the event of resale of the goods (supplier recourse in the supply chain) shall exist against us only to the extent that the customer has not made agreements with its buyer going beyond the statutory claims for defects. Such recourse claims are excluded if the customer has processed or worked on the goods delivered by us or otherwise altered them, unless this corresponds to the contractually agreed intended purpose of the goods.
(7) The acknowledgment of breaches of duty in the form of material defects always requires text form.
(8) The limitation period for defect claims is 12 months, calculated from the day of the passing of risk (see Section 11 paragraphs 3 and 4 of the GTC), in the event of refusal by the customer to accept or take delivery, from the time of notification of readiness for collection of the goods. This shall not apply in the case of construction contracts, in the case of goods that have been used for a building in accordance with their customary use and have caused its defectiveness, in the case of claims due to injury to life, body, or health, in the case of at least grossly negligent breaches of duty by us or one of our legal representatives or vicarious agents, and for claims for damages arising from a guarantee. Statutory special provisions for third-party claims for surrender in rem, in the case of fraudulent concealment by the seller, and for claims in supplier recourse upon final delivery to a consumer shall also remain unaffected.
§ 14 Liability for Damages
(1) We shall be liable for damages – irrespective of the legal basis – without limitation
a) in cases of intent,
b) in cases of culpable injury to life, body, or health,
c) in the event of delay, insofar as a fixed delivery date and/or fixed performance date was agreed,
d) in the event of defects which we fraudulently concealed or the absence of which we guaranteed,
e) in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used objects.
(2) We shall also be liable in the event of culpable breach of essential contractual obligations; in the case of simple negligence, however, this shall be limited to the damage which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen when exercising customary due care and which is typically to be expected when the delivery item is used as intended. Essential contractual obligations are those obligations which protect legal positions of the customer that are essential to the contract and which the contract, by its content and purpose, is intended precisely to grant, as well as obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly has relied and may rely.
(3) We shall also be liable for damage caused by gross negligence. However, if obligations other than essential contractual obligations have been breached and legal interests other than life, body, or health are affected, our liability in cases of gross negligence shall also be limited to the damage which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen when exercising customary due care and which is typically to be expected when the delivery item is used as intended.
(4) Further claims are excluded.
(5) The exclusions and limitations of liability referred to in paragraphs 1 to 4 shall also apply to corresponding breaches of duty by our vicarious agents.
(6) Insofar as liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of our executive bodies, legal representatives, employees, and other vicarious agents.
§ 15 Retention of Title
(1) We retain title to the sold goods until full payment of all our present and future claims arising from the contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must notify us immediately in writing if and to the extent that third parties gain access to the goods belonging to us. This shall also apply to impairments of any other kind. Irrespective of this, the customer must already in advance inform the third parties of the rights existing in the goods. The customer shall bear the costs of intervention by us insofar as the third party is unable to reimburse them.
(3) The customer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall also apply:
a) The retention of title shall extend to the products resulting from processing, mixing, or combining our goods at their full value, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
b) The customer hereby assigns to us by way of security in full, or in the amount of our possible co-ownership share pursuant to the above paragraph a), the claims against third parties arising from the resale of the goods or the product. We accept the assignment. The obligations of the customer referred to in paragraph 2 shall also apply with regard to the assigned claims.
c) The customer shall remain authorized to collect the claim alongside us. We undertake not to collect the claim as long as the customer meets its payment obligations toward us, is not in default of payment, no application has been filed for the opening of insolvency proceedings, and no other deficiency in its ability to perform exists. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment.
d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.
§ 16 Third-Party Intellectual Property Rights
(1) If a third party asserts claims against the customer on account of industrial property rights or copyrights (hereinafter “protective rights”) due to products delivered by us and the customer’s contractual use of the products is thereby impaired or prohibited, the customer must notify us immediately. The customer shall not acknowledge the alleged infringement and shall conduct any dispute with the third party concerning the infringement of protective rights only in agreement with us. If the customer ceases use of the product for reasons of damage mitigation or other important reasons, it shall be obliged to inform the third party that cessation of use does not constitute an acknowledgment of infringement of protective rights.
(2) The customer shall have no claims for infringement of protective rights insofar as the infringement is attributable to the customer itself, is based on specific requirements of the customer (e.g. due to production documents made available by it to us), is caused by an application not provided for in the product documentation, or is caused by the fact that the product was modified by the customer or used together with products not supplied by us. If, in such a case, claims are asserted against us by a third party for infringement of such protective rights, the customer shall be obliged to indemnify us against these claims including legal costs and other expenses.
§ 17 Applicable Law – Place of Jurisdiction
(1) The law of the Federal Republic of Germany shall apply, excluding the rules that refer to another legal system and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) In all disputes arising from the contractual relationship, the action shall be brought before the court having jurisdiction for our registered office. We shall also be entitled to sue at the customer’s principal place of business.
II. Customer information
1. Identity of the seller
Polytec Kunststoffverarbeitung GmbH & Co. KG
Lise-Meitner-Str. 13
48691 Vreden
Germany
Phone: 02564-9317-0
Email: service@polytec-verpackung.de
2. Information on the conclusion of the contract
The technical steps for concluding the contract, the conclusion of the contract itself, and the options for correction are carried out in accordance with the provisions of “Conclusion of the Contract” in our General Terms and Conditions (Part I.).
3. Contract language, contract text storage
3.1. The contract language is German.
3.2. We do not store the complete contract text. Before submitting the order via the online shopping cart system, the contract data can be printed out using the browser's print function or saved electronically. After we receive the order, the order data, the information required by law for distance contracts, and the general terms and conditions will be sent to you again by email.
3.3. For requests for quotations outside the online shopping cart system, you will receive all contract data in the form of a binding quotation in text form, e.g. by email, which you can print out or save electronically.
4. Essential characteristics of the goods or services
The essential characteristics of the goods and/or services can be found in the respective quotation.
5. Prices and payment terms
5.1. The prices listed in the respective offers and the shipping costs represent total prices. They include all price components, including all applicable taxes.
5.2. The shipping costs incurred are not included in the purchase price. They can be accessed via a correspondingly labeled button on our website or in the respective offer, are shown separately during the ordering process, and are to be borne by you in addition, unless free shipping has been promised.
5.3. The payment methods available to you are shown under a corresponding button on our website or in the respective offer.
5.4. Unless otherwise specified for the individual payment methods, the payment claims from the concluded contract are due for payment immediately.
6. Delivery conditions
6.1. The delivery conditions, delivery date, and any existing delivery restrictions can be found under a corresponding button on our website or in the respective offer.
6.2. If you are a consumer, it is regulated by law that the risk of accidental loss and accidental deterioration of the sold item during shipment is only transferred to you upon delivery of the goods, regardless of whether the shipment is insured or uninsured. This does not apply if you have independently commissioned a transport company not designated by the entrepreneur or another person designated to carry out the shipment.
7. Statutory liability for defects
Liability for defects is governed by the “Warranty” provision in our General Terms and Conditions (Part I).
These General Terms and Conditions and customer information were created by the Händlerbund's lawyers specializing in IT law and are continuously reviewed for legal compliance. Händlerbund Management AG guarantees the legal validity of the texts and is liable in the event of warnings. Further information can be found at: https://www.haendlerbund.de/de/leistungen/rechtssicherheit/agb-service.
Last update: October 27, 2020