General Terms and Conditions
I. Area of application
1. These general terms and conditions apply to all contracts with other companies in the sense of § 14 BGB, with all corporate bodies under public la with all special assets under public law.
2. Our general terms and conditions apply exclusively; deviating terms or conditions to the contrary of the customer are not accepted unless we explicitly agreed to them in written form. Our terms and conditions apply even if we know of deviating terms or conditions to the contrary of our customers and we have made deliveries to the customer without any restrictions. Other terms and conditions apart from ours only become part of a contract, when we agree to these explicitly. Our terms and conditions apply in the newest version and for future contracts, with or without an explicit agreement.
3. All agreements that are made between us and our customer in order to complete this purchase order are written down in this contract in written form.
II. Designs for moulds, packaging, printing plates and printing documents
1. We reserve a copyright to all designs for moulds, packaging, drawings and models made by us or by a third party contracted by us including all the herewith aligned rights of use, rights of exploitation and further rights. Before the propagation to a third party, the written approval of Jaco must be given to the customer.
2. With the order of printed articles, the buyer is obliged to provide binding printing specifications. If graphical works for the creation of the printing prerequisites are to be conducted by us by request, we are entitled to claim compensation for our expenses from our customer.
3. As far as printing plates that are used for the production of goods supplied by us are changed, we are entitled to dispose of the respectively older version of a printing plate.
4. Posted samples or drawings are only returned on request. If an order does not come to be within three months of the submission of a quote, we are allowed to destroy samples and drawings in connection with the respective quote.
5. As far as items are printed, the printing release (approval) signed by the customer ("GfP", "Good-for-printing") is decisive for any printing work owed by us. Upon approval of the print approval, the customer assumes responsibility for errors in content and thus declares that he has carried out a proper final check of the print data. Non-identifiable defects in the suitability of the artwork for the desired reproduction are beyond our responsibility. The printing process is carried out according to the existing technical possibilities and with the assurance of careful monitoring.
III. Terms of payment, prices
1. For moulds 50% of the agreed upon gross price (including tax) are to be paid at the time of the order and 50% upon the reception of the initial samples. Moulds and printing plates remain property of Dr. Jaeniche GmbH & Co KG and are used exclusively for the customer that paid for them. For moulds and printing plates a cash discount deduction is not allowed.
2. For other goods we allow a cash discount of 2% for the receipt of payments within 14 days of the date of invoice. The cash discount is deducted from the respective net delivery price.
3. For the timeliness of payment, the receipt of payment is the only applicable measure. Checks and bills of exchange are only accepted on account of performance. Interests and fees are to be decompensated to us without delay.
4. Our prices include transportation costs, insurance costs and customs duty. The value-added tax or other legal taxation is not included in our prices; it is charged on the date of the invoice.
5. If any circumstances arise that suggest an impaired capability to pay on the side of our customer after the conclusion of a contract, we are entitled to refuse the delivery. Furthermore we are entitled to set an appropriate time-limit within which the customer must pay the invoice after delivery or provide us with a guarantee or safety of some kind. § 321 BGB remains untouched.
6. Summation is only permitted if the other party has undisputed claims that we have accepted or legal claims. The other party has a right of retention only if the counterclaim rests on the same corresponding contractual relationship.
IV. Deliveries and delivery time
1. The period of delivery generally begins with the conclusion of a contract. However, we are inhibited during the time in which neccesary information, documents and approvals of our customers are still missing or agreed upon payments in advance or securities are not provided. The delivery date is then postponed by the according period of time.
2. We are allowed to make partial deliveries to reasonable extents and in reasonable amounts in any case.
3. If there is a delay of delivery caused by acts of nature beyond our control or force majeure (such as war, civil disturbance, force of nature), by labour dispute, such as strike oft the workforce or by other unforeseeable events that were unknown-of at the time of the conclusion oft the contract and that were not within our responsibility and beyond our influence, the delivery time is prolonged by the time of the disturbance plus a reasonable lead time for taking up production again. The date of delivery is delayed by the corresponding time. If an aforementioned event causes the delivery to become considerably hindered or impossible, we are entitled to withdraw from the contract. If the delay lasts for more than three months or if the delay becomes unacceptable for the customer before three months are over, the customer is entitled to withdraw from the contract.
4. From a minimum quantity of 20.000 pieces we reserve the right to deliver a more- or minor delivery quantity of 10%. For quantities below 20.000 we have to reserve the right to deliver a higher quantity of up to 30% and a lower quantity of up to 15% of the order quantity due to technical restraints in the production process.
5. We explicitly reserve the right to substitute the raw material of one supplier with the comparable raw material of another supplier with equal value and the same food- and pharmacological characteristics. In the case of a change to a new raw material supplier, the customer is informed by means of the technical data sheet of the raw material that contains the manufacturer specifications.
V. Passing of risk
1. The risk passes to the customer as soon as the goods are given to the transport company or have been handed to the person responsible for transportation on customer side. This also applies for transportation free of charges. If the transportation is delayed for reasons we cannot be held responsible for, the risk passes to the customer as soon as we give notice of readiness for dispatch to the customer.
2. At buyer’s written request, the goods can be insured against breakage, transport- and fire damage at the buyer’s expense.
VI. Liability for defects
1. For injection moulded articles that are not delivered „off-the-shelf“ but in accordance to customer specifications, a quality is agreed upon an owed, that corresponds to the average initial samples, that we have provided to the customer for approbation and that were accepted by the customer. For printed articles the „good for print“ is the relevant means of evaluation of the owed quality of the print. As far as we produce goods according to customer specifications, the reference for the manufactured good is the appearance and workmanship that resulted from the abidance by the specifications. The suitability of our products for certain fillers or other purposes of use by the customer is only owed condition of our products if this is explicitly stipulated by contract.
2. The customer is obliged to inspect the goods directly after delivery in so far as this is doable according to the business routine. Any revealed defect must be reported without delay. If the defect is not reported, the goods are approved unless there is a defect that was not noticeable during the inspection. If such a defect is revealed, it must be reported as soon as it becomes known; otherwise the good are considered approved despite the defect. As far as the good are considered approved, there is no way to assert claims due to a defect. However, in order to protect interests it is sufficient to post a notice of defect in a timely manner. Our quality certificates and similar internal quality insurance documents are the result of our quality control process and do not release the customer from the obligation to undertake the reception inspection of the goods delivered by us. In the case of a complaint of a defect, the purchaser must give us the possibility to inspect the rejected goods. The tally sheets that belong to the rejected good must be kept and made accessible to us for inspection.
3. If supplementary performance is claimed by the customer, we are entitled to choose the type of supplementary performance we shall deliver (subsequent improvement or subsequent delivery).
4. We are legally liable for defects produced due to deliberate intention or gross negligence by us, our helpers or our legal representatives and compensate for these damages. However, in the case of a non-deliberate breach of contract, the compensation for damages is limited to the foreseeable, expected damage. Furthermore, we are also legally liable if we have culpably breached a fundamental contractual obligation or if the customer is legally entitled to get compensation instead of supplementary performance; in these cases the compensation is also limited to the foreseeable, expected damage. The liability for the culpable injury of the health or the life of a human body remains unaffected as it does in the case of a product liability. If nothing else than the above is arranged between both parties, the compensation for damages caused by defects is excluded. As far as our liability is excluded or limited, the same regulations apply for our legal representatives, our employees and workers and assignees.
VII. Property rights:
1. As far as the articles are delivered according to drawings, models, samples, developments and etc. of the customer, we are not liable for the breach of third parties‘property rights. In these cases the customer safeguards that the property rights of third parties are not breached by the production / delivery of our goods. Compensation for damages is excluded in the cases named above, unless we are liable by law in the case of gross negligence, deliberate intention or in the case of a severe breach of contract.
2. As far as the articles are delivered according to drawings, models, samples, developments etc. of the customer, the customer must discharge us of possible claims of compensation for damages made by third parties. If a third party prohibits the production or delivery of a certain goods, that were manufactured according to drawings, models, samples, developments etc. of our customer, we are entitled to stop the deliveries of those goods without assessing the legal situation and we cannot be claimed for compensation for damages. Furthermore, we are entitled to receive a compensation for our costs, unless the customer can give us a sufficient safety for all the possible claims the third party may make, including the costs of litigation. For the indirect and direct damages that follow the breach and assertion of possible property rights, the customer must pay an adequate advance payment if we ask for one.
VIII. Liability for damages, exclusion of liability
Apart from the named liability for damages described in the paragraph above, any other compensation for damages or liability is excluded, that arises from negligence, not gross negligence or purposeful damage of us, our employees, representatives or assignees. This applies for claims from damages through breaches of contract as well as claims from damages in the course of contract negotiations and for any other claim regardless of the existence of a contract and regardless of further duties, such as the duty to take care.
As far as the damages are not intentional, our liability is limited to the predictable damage that normally occurs in such cases.
However, the limits to liability described above do not apply claims for damages for injury to life, limb or health;
1. for compensation claims derived from the Product Liability Act;
2. for compensation claims in the place of a delivery and for compensation claims derived from the breach of contract; in these cases, however, our liability is limited to the contract typical and objectively predictable damage.
3. As far as our liability is limited or excluded, the same regulation applies for our legal representatives, our employees and other assignees.
IX. Reservation of proprty rights
1. We reserve the property rights of all deliveries until all payment obligations towards us have been fulfilled (including accounts receivable relating to an open account of the customer). We retain title to the delivery item until all existing payment obligations are fulfilled to us (including current accounts receivable) from the business relationship. In the case of default of payment or contrary manner to the contract Jaco is entitled to retract the articles of sale. The retraction is the cancellation oft he contract. After retraction of the articles of sale we are entitled to utilise the same, any proceeds of the sale less expenses will be settled against the liability of the customer.
2. The customer is obliged to handle the consignment with care and insure the same at his own expense sufficiently.
3. In the case of seizure or other intervention of a third party the customer hast o notify us without delay in writing, to enable us to take action according to § 771 ZPO (civil process order). Should the third party not be able to reimburse the legal and extrajudicial costs, originated by means of the assertion of our right of ownership, towards us, the customer is liable for the loss of accounts received for goods supplied.
4. The customer is entitled to process and sell the article of sale in an orderly cause of business for as long as he is not in default. Pledging of goods and transfer by way of security is prohibited. Already now the customer conveys all existing debt claims including VAT amounting to the invoice total to us, accruing from a resale or a possible damage of the goods against his customer or third party, irrespective of the fact that the goods have been sold before or after further processing. The customer remains entitled to forfeit the debt claim even after the assignment of a claim. Our authorisation to forfeit the debt claim ourselves remains hereof unaffected. However we commit ourselves not to retract any debt claims for as long as the customer fulfills his payment obligation, resulting from the collected precedes and/or he is not in default of payment and in particular no petition in legal composition proceedings or insolvency proceedings have been filed or in the case of bankruptcy. In that case we can demand information on the assigned debt claims from our customer and the information on the goods sold to his customers. Furthermore all information necessary for the collection of outstanding amounts and all relating documentation must be given to us and that the customer must inform the third party about the assignment of the debt.
5. The processing or alteration of the article will always be conducted on our behalf. Should the article of sale be processed with other items not belonging to us, we will acquire co-ownership of the new object in proportional of the value thereof (invoice final amount including VAT) to the other processed items at the time of processing. For the object generated due to processing the same applies as for the item delivered “proviso”.
6. Should the article of sale be inseparably compounded with other items not belonging to us, we will acquire co-ownership of the new object in proportional of the value thereof (invoice final amount including VAT) to the other processed items inseparably compounded at the time of the amalgamation. In case the amalgamation results in a way that the object of the customer has to be seen as the principal thing of value it applies that the customer agrees to consign co-ownership to us. The customer keeps the objects of the arisen sole-ownership co-ownership in store for us.
7. We commit ourselves to release all deposited securities on demand of the customer as and when the liquidable value of the securities exceed the hedged debt claim by more than 10%, the choice of secured items to be released by us rests with us.
X. Applied law, court of jurisdiction, place of fulfillmenT
1. The law of the Federal Republic of Germany applies without exception, the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
2. Place of fulfillment is our head office.
3. Is the customer a tradesman, a corporate body under public law, Kehl is the sole court of jurisdiction for all disputes.