We conclude contracts exclusively based on our following General Terms and Conditions. They apply in particular also to future and verbally concluded contracts. In particular, the purchaser’s terms and conditions of purchase, deviating provisions shall only become part of the contract if this has been expressly agreed in writing. Our General Terms and Conditions of Business shall also apply if we carry out the delivery to the customer in the knowledge that the customer’s terms and conditions conflict with or deviate from our General Terms and Conditions of Business. Individual contractually agreed provisions within the contractual relationship shall take precedence over the General Terms and Conditions. Should individual provisions be ineffective, the remaining provisions shall remain effective.
1. Conclusion of Contract
1.1 Our offers are subject to change. We reserve the right to make technical changes and changes in shape, color and weight within reason.
1.2 All verbal agreements are invalid.
1.3 The scope of delivery shall be determined following our written order confirmation. In the absence of such an offer, our offer shall prevail. Subsidiary agreements and amendments must be made in writing.
Samples are hand-made; customary and insignificant deviations (e.g., material, condition, dimensions, design, color, thickness, weight, etc.) from machine-made deliveries are accepted by the parties within the scope of the agreed condition.
3. Prices and Terms of Payment
3.1 The prices stated in our order confirmations plus the statutory value-added tax shall apply. We shall be entitled to increase the price agreed with the Purchaser vis-à-vis entrepreneurs if four months have elapsed since the conclusion of the purchase contract and higher costs arise due to statutory or official orders, for example, due to an increase in value-added tax, the imposition of investigation duties and the levying of customs duties, or if material and labor costs increase. We will explain and justify the reason and amount of the purchase price increase to the customer. The customer has the right to terminate the contract if the increase is more than 5 %.
3.2 Payments are to be made within 30 days net or 14 days with a 2% discount from the delivery date, which goes hand in hand with the invoice. Invoices with an amount of less than 50 EUR are payable immediately net.
3.3 In the event of default in payment by the customer, we shall be entitled, if the customer is an entrepreneur, to demand interest on arrears in the amount of 9 percentage points above the base interest rate without further proof. We reserve the right to claim greater damages for delay. The provision of § 353 HGB remains unaffected. In the event of late payment by a customer who is a consumer, the interest rate shall be 5 percentage points above the prime rate.
3.4 Payment by bills of exchange and checks shall be made on account of performance. Bills of exchange shall only be accepted on account of payment after prior written agreement. We are entitled to refuse the acceptance of bills of exchange and checks. Suppose the buyer culpably fails to meet his payment obligations. In that case, particularly if he does not honor checks and bills of exchange and stops his payments, we shall be entitled to declare the entire remaining debt due, even if we have accepted checks and bills of exchange. This does not apply unless there is a severe breach of contract. Instead of calling in the entire remaining debt, only advance payments for a certain period may be demanded; this applies in particular if the specific remaining debt has not yet been finally determined.
3.5 The Buyer shall only have a right of set-off if its counterclaims have been legally established or are undisputed. The right to refuse performance according to § 320 BGB shall remain unaffected.
3.6 Upon conclusion of the contract we assume creditworthiness of the buyer. Suppose we subsequently become aware of circumstances that make the creditworthiness of the buyer appear insufficient. In that case, we may demand payment of the agreed price concurrently with delivery of the goods or provision of security, setting a reasonable deadline. Irrespective of this, we may require security or cash payment for any current bills of exchange.
4 Shipment and transfer of risk
The risk shall pass to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left our works for shipment, irrespective of who bears the freight costs. This also applies to free delivery.
If the dispatch of the goods is delayed for a reason for which we are not responsible, the risk shall already pass to the buyer upon notification of readiness for dispatch. The same shall apply if we exercise a right of retention.
5 Delivery Period
5.1 Agreed delivery dates are non-binding unless expressly stipulated otherwise in writing. Suppose a binding delivery period has been agreed upon. In that case, this period shall be extended appropriately in the event of force majeure (traffic congestion and obstructions, lack of means of transport, strikes, war). If a binding delivery deadline is exceeded by more than 4 weeks, the buyer is entitled to withdraw from the contract after a reasonable grace period of at least 10 days. The grace period must be set in writing or text form. Withdrawal from the contract must be declared in writing or text form. The buyer can only exercise the right to withdraw from the contract within one week after the expiration of the grace period.
5.2 A prerequisite for compliance with the delivery time is the timely fulfillment of the contractual obligations assumed by the purchaser, in particular the clarification of all technical questions as well as the handover of all documents required for the processing of the order and the availability of all information required for the execution of the order.
5.3 Furthermore, in the event of a delay for which we are responsible, the buyer shall only be entitled to assert further rights if a grace period of at least three weeks set by it after the occurrence of the delay has expired fruitlessly.
5.4 Non-fulfillment of obligations by the customer excludes default on our part.
6. Withdrawal from the contract by the Customer
6.1 If the due date of the delivery falls in a period in which we are prevented from fulfilling the contract as a result of force majeure, labor disputes, or delivery difficulties on the part of our suppliers or similar, the customer may withdraw from the contract after setting a reasonable grace period of at least four weeks if the maintenance of the contract is unreasonable for him.
6.2 In these cases, the assertion of claims for damages due to non-performance is excluded.
6.3 If we have not fulfilled the contract within two months after removing the impediment to performance within the meaning of Section 6.1, the customer may withdraw from the agreement.
6.4 In the event of an impediment to performance referred to in Section 6.1. We reserve the right to withdraw from the contract if the continuation of the contract represents unreasonable hardship for us.
In cases of premature termination of the contract by the purchaser other than those mentioned in Clause 6 or the event of justified withdrawal by us, for example, in the event of default in acceptance by the purchaser, we shall be entitled to lump-sum damages vis-à-vis entrepreneurs in the amount of 15% of the order value, unless we prove more significant damages or the purchaser proves lower damages.
8 Refusal of acceptance
If the buyer refuses to accept the goods, we may set a reasonable grace period to receive the goods. If the purchaser has not delivered the goods within the period of grace granted to him, we shall be entitled to withdraw from the contract and claim damages for non-performance. Section 7. of our General Terms and Conditions shall apply to assessing the amount of damages.
9 Storage costs
9.1 In the case of blanket orders, the finished goods shall initially be stored free of charge. If the finished goods are not accepted within one year, calculated from the date of the first partial delivery, we will charge storage costs. If the first partial delivery does not take place, we will charge storage costs from the time we have requested the buyer in writing to take delivery of the goods, setting a deadline of two weeks.
9.2 The goods still in the warehouse will be delivered to the buyer. In addition to the storage costs, an invoice shall be issued for the goods and the other services rendered and semi-finished products manufactured by us up to that point in time.
10 Special conditions
10.1 Cardboard products Minor deviations in dimensions, which occur due to the nature of the cardboard and its processing, cannot be the cause of a complaint. Nor can complaints be made about customary weight deviations of 5% upwards or downwards and excess or short deliveries of
25 % for delivery up to 500 pieces
20 % for delivery up to 3000 pieces
10 % for delivery of over 3000 pieces
10.2 Printed matter
Excess or short deliveries of up to 25 %, color deviations, technically necessary changes to the printing status and other variations due to production technology are unavoidable and cannot be objected to.
We shall not be liable for minor counting errors or selection defects and weight loss, or other changes in the condition of the goods from loading time. In production, the occurrence of a relatively small number of defective goods is technically unavoidable and a proportion of up to 3% of the total quantity is not objectionable. The films and molds provided to us by the purchaser to execute an order shall be properly stored by the seller free of charge. However, they must be insured against fire, water and storm damage, etc., by the buyer himself.
Insurance coverage by insurances concluded by us does not exist. Any liability of the seller for damage to films and molds stored with him is excluded unless the damage was caused by gross negligence or intent on our part.
11. Retention of Title
11.1 All deliveries shall be made subject to retention of title. The delivered goods remain our property until full payment of the purchase price and all our other claims against the buyer (in case of payment by check or bill of exchange until they are honored). Suppose a bill of exchange liability is established for us in connection with the purchase price paid. In that case, the reservation of title shall expire only upon the redemption of the bill of exchange by the purchaser as drawee.
11.2 The treatment and processing of the goods by the buyer shall always be carried out in our name and on our behalf. If processing is carried out with items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods delivered by us to the other processed items. The user’s contractual partner shall keep the objects in the user’s sole ownership or co-ownership.
11.3 The buyer is obliged to inform us immediately of any access by third parties to the goods, for example, in the event of seizure and any damage to or destruction of the goods.
11.4 We shall be entitled to withdraw from the contract and demand the return of the goods in the event of any breach of contract by the buyer, particularly in the event of default in payment or breach of an obligation under clause 3 of this provision.
11.5 The Buyer shall be entitled to resell the goods in the ordinary course of business. He already now assigns to us all claims in the amount of the invoice amount which accrue to him against a third party through the resale. We accept the assignment. After the assignment, the buyer is authorized to collect the claim. We reserve the right to collect the share ourselves as soon as the purchaser does not properly fulfill his payment obligations and defaults on payment.
12. Limitations of liability
12.1 Liability for claims for damages, irrespective of the legal basis, is excluded.
12.2 The exclusion of liability shall not apply if a guarantee has been given for the quality of the service or if a defect has been fraudulently concealed. Furthermore, the exclusion of liability does not apply to damages resulting from injury to life, body, or health. Moreover, the exclusion of liability shall not apply to other damages if the damages are based on a grossly negligent or intentional breach of duty by the user or its legal representative or vicarious agent. If essential contractual obligations are violated, the exclusion of liability shall not apply even if negligence was involved; liability in such cases shall be limited to typical contractual and foreseeable damages. Claims arising from product liability shall also remain unaffected by the exclusion of liability.
13.1 If the Buyer is an entrepreneur, we shall provide a warranty for defects of the goods by repair or replacement delivery at our discretion. Warranty claims are excluded for defects in the product manufactured by us, which are based on printing documents provided by the customer, such as offset lithos, data carriers, even if these are transmitted by remote data transmission, provided that the purchaser is an entrepreneur. Excluded are claims for damages in the cases of clause 12.2.
13.2 If the purchaser is a consumer, he shall first choose whether subsequent performance will be affected by repair or replacement delivery. However, we are entitled to refuse the type of next performance selected if it is only possible at a disproportionate cost. The other type of subsequent performance remains without significant disadvantages for the consumer.
13.3 If the supplementary performance fails, the purchaser may, in principle, demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) at his discretion. However, in the event of only a minor breach of contract, particularly in only minor defects, the buyer shall not be entitled to withdraw from the agreement.
13.4 The buyer, an entrepreneur, must notify us of obvious defects in writing or in text form within two weeks from receipt of the goods; otherwise, the assertion of the warranty claim is excluded. Timely dispatch shall be sufficient to meet the deadline. The purchaser shall bear the entire burden of proof for all prerequisites for a share, particularly for the defect itself, for the time of discovery of the fault and for the timeliness of the notice of deficiency.
13.5 Consumers must notify us of obvious defects in writing or text form within two months after the time at which the condition of the goods contrary to the contract was established. The receipt of the notification by us shall be decisive for the observance of the deadline. If the consumer fails to provide this information, the warranty rights shall expire two months after the consumer discovers the defect. This shall not apply in the event of fraudulent intent on our part. The burden of proof for the time of detection of the defect shall be on the consumer.
13.6 The warranty period for entrepreneurs is one year from the handover of the goods, for contracts for work and services the period begins with acceptance. Excluded are claims for damages in the cases of clause 12.2.
13.7 As a matter of principle, only our product description shall be deemed agreed as the quality of the goods. Public statements, recommendations, or advertising does not constitute a contractual description of the quality of the goods.
14. Third party rights/copyrights
If third-party rights, in particular copyrights, are infringed by the execution of the order, the client shall be solely liable for all claims arising from that place. In this respect, the customer shall indemnify the Contractor internally against all claims of third parties.
15. Data Protection
16. Place of performance, place of jurisdiction and applicable law
16.1 The place of performance for all obligations arising from the contractual relationship shall be Bayreuth.
16.2 The place of jurisdiction for all disputes arising from the contractual relationship shall be exclusively Bayreuth if the buyer is a registered merchant, a legal entity under public law, or a special fund under public law. However, we shall be free to take action before the court has jurisdiction over the customer’s registered office.
16.3 German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Convention) is excluded.
17. Invalidity of individual clauses
Suppose individual clauses of these terms and conditions of business and delivery are or become invalid or are amended in writing by contractual agreement. In that case, this shall not affect the validity of the remaining provisions.
The invalid provision shall be deemed replaced by an economically equivalent provision.
Procos GmbH mit beschränkter Haftung, Munich General Terms and Conditions of Business and Delivery