General Terms and Conditions
of TRICOR Packaging & Logistics AG (as of 03/21/2016)
1. Scope of Application
The following terms and conditions shall apply to all contracts, deliveries and other business relationships unless they are amended or excluded with the express consent of TRICOR. Any provisions that deviate from, contradict or supplement the following or the statutory provisions - in particular in the Buyer's terms and conditions of purchase - shall only be binding on TRICOR, even if TRICOR is aware of them, if they have been confirmed in writing by TRICOR. Otherwise, they shall be deemed to have been rejected. The unconditional delivery of goods, performance of services or acceptance of payments shall not constitute any acknowledgement of deviating provisions.
2. Conclusion of Contract, Form
All offers are always subject to change. We reserve the right to make reasonable changes in form, color and/or weight. The conclusion of the contract and all other declarations relating to the contract must be made in writing or in text form on a durable medium. In electronic legal transactions, the confirmation of receipt of the order does not constitute a binding declaration of acceptance of the contractual offer, unless acceptance is expressly declared in the confirmation of receipt. If an order is placed electronically, the text of the contract shall be stored by TRICOR and sent to the Buyer by e-mail on request together with these GTC. Otherwise, the information obligations of § 312 i para. 1 no. 1 - 3 BGB are excluded. If TRICOR's claim to payment is jeopardized after confirmation of an order, TRICOR shall be entitled to withdraw from the contract or demand advance payment.
3. Prices, Discounts, Interest on Arrears, Offsettings and Retention
The prices quoted are net prices and refer to 1000 units or a separately quoted unit if applicable. VAT will be charged in addition at the statutory rate. Payment must be made within 30 days of the due date and receipt of the invoice (net). Confirmed prices of an order are not binding for repeat orders of similar goods. If payment is received by TRICOR within 10 days of the invoice date, a 2% discount shall be granted if no earlier invoices are overdue and nothing else has been agreed. In the event of late payment, all claims, including deferred claims, shall become due immediately. TRICOR shall be entitled to charge interest at a rate of 9% above the respective base interest rate. The Buyer shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. The right of retention due to counterclaims from the same contractual relationship is not affected by this.
4. Packaging, Shipping and Transfer of Risk
a) Unless otherwise agreed, TRICOR's prices are quoted for delivery free domicile including simple strapping or palletizing. TRICOR reserves the right to choose the shipping route and method. Shipment by rail shall be made unpaid. The freight to be borne by TRICOR shall be paid by the recipient and may be deducted from the invoice amount - but without delivery costs.
b) If the Buyer requests additional packaging, this shall be charged separately. Pallets that are to be reused shall be made available as pallet loans. They are recorded via a pallet account as a debit when the goods are delivered and a credit when empty pallets are returned. The usual commercial regulations for pallet traffic apply to processing. Stocks of pallets that exceed the normal scope of delivery or an agreed pallet limit or a corresponding storage period shall be invoiced to the buyer at the replacement price.
c) The goods shall be insured at the request and expense of the buyer.
d) If shipment is delayed at the request or through the fault of the Buyer, the goods shall be stored at the expense and risk of the Buyer. In this case, notification of readiness for shipment shall be deemed equivalent to shipment.
e) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer when the goods are handed over to a forwarding agent or carrier, but at the latest when they leave the warehouse.
5. Cancellation Costs
If the Buyer withdraws from the placed order without justification, TRICOR may, without prejudice to the possibility of claiming higher actual damages, demand 10% of the sales price, but at least an amount of EUR 30.00, for the costs incurred in processing the order and for loss of profit. The buyer reserves the right to provide evidence of lower damages.
6. Cliché and Punching Tools
The expenses incurred shall be invoiced at cost price for all initial designs; however, the cliché models shall remain the property of TRICOR. The clichés and tools shall be stored for a period of one full year after the last delivery. After expiry of this period, TRICOR shall be entitled to destroy cliché and punching tools without consultation.
7. Scope of Delivery, Deadlines, Contracts on Call, Delay and Impossibility
a) The Buyer shall be obliged to accept excess or short deliveries as well as weight and color deviations customary in the industry. TRICOR reserves the right to make the following excess or short deliveries, which shall also apply to replacement deliveries: Up to 500 pieces 25%, up to 3000 pieces 15%, over 3000 pieces 10%. Partial deliveries are permissible to a reasonable extent. In the case of partial deliveries, TRICOR may distribute the margin among the individual deliveries at its discretion. Weight deviations of ± 5 %, which are due to the tolerance in the square meter weights of paper production, shall be deemed customary in the trade. At TRICOR's discretion, half-cellulose can also be replaced by corrugated medium paper with a higher input weight. TRICOR shall only be liable for deviations in paper color, sizing, smoothness and purity as well as printing ink if they are unreasonable for the Buyer, taking into account his interests. The processing of the packaging is carried out as is customary in the industry; depending on the circumstances with tab-glued, strip-glued or stapled factory edges. The dimensions are given in the order length+width+height and are always the internal dimensions in mm.
b) In the case of contracts with continuous delivery on call, the Buyer shall be obliged to divide up and accept the order quantity during the order. If the order quantity is not accepted during the call-off period, TRICOR shall be entitled to demand acceptance and payment of the entire remaining quantity without prejudice to further statutory rights. If a call-off period has not been specified, TRICOR shall be entitled to set a deadline for the further call-off in the event of non-call-off within the usual period and to demand payment of the entire remaining order quantity after fruitless expiry, without prejudice to further statutory rights.
c) TRICOR shall endeavor to adhere to the stated delivery deadlines. The Buyer may only demand rescission or compensation for damages due to non-fulfillment if it has set TRICOR a reasonable grace period of at least 2 weeks.
d) The delivery period shall be extended appropriately in the event of force majeure and all unforeseen obstacles occurring after conclusion of the contract for which TRICOR is not responsible. This shall also apply if these circumstances occur at TRICOR's suppliers and their subcontractors and they are also not responsible for the circumstances. Otherwise, TRICOR shall be liable for default and impossibility in accordance with the statutory provisions.
8. Retention of Title
a) TRICOR shall retain title to the contractual items until all claims against the Buyer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. In the event of a breach of important contractual obligations, in particular default in payment, TRICOR shall be entitled to take back the goods after withdrawal and the Buyer shall be obliged to surrender them. The Buyer shall notify TRICOR immediately in writing in the event of seizure or other interventions by third parties as well as damage to or destruction of the goods.
b) The Buyer is entitled to resell the goods in the ordinary course of business provided that the claims from the resale are transferred to TRICOR as follows: The Buyer hereby assigns to TRICOR all claims with all ancillary rights accruing to it from the resale against the buyer or against third parties, irrespective of whether the goods subject to retention of title are resold without or after processing. The Buyer is authorized to collect this claim even after the assignment. TRICOR's right to collect the claims itself shall remain unaffected by this. TRICOR undertakes not to collect the claims as long as the Buyer duly fulfills its payment obligations. TRICOR may demand that the Buyer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignments.
c) Treatment and processing of the reserved goods shall be carried out for TRICOR as the manufacturer within the meaning of § 950 BGB without obligating TRICOR. The processed goods shall be deemed reserved goods within the meaning of these terms and conditions. If the reserved goods are processed or inseparably mixed with other items not belonging to TRICOR, TRICOR shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used at the time of processing or mixing. The resulting co-ownership rights shall be deemed to be reserved goods within the meaning of these terms and conditions.
d) TRICOR undertakes to release the securities to which it is entitled insofar as their value exceeds the claims to be secured by more than 20%, insofar as these have not yet been settled. TRICOR shall be entitled to select the items to be released.
9. Notice of Defects and Warranty
TRICOR shall assume warranty for the goods delivered by it in accordance with the following provisions, which conclusively contain the warranty rules and which do not constitute a guarantee in the legal sense:
a) The Buyer shall inspect the goods received immediately upon arrival for quantity, quality and warranted characteristics. The goods shall be inspected in accordance with the specification agreed in writing with TRICOR. If there is no such specification agreed in writing, the specification of the delivered goods prepared by TRICOR shall automatically apply. Any defects found must be notified to TRICOR in writing within a preclusive period of 14 days after receipt of the goods, enclosing samples from which the defect can be seen. If the Buyer fails to make this complaint, the goods shall be deemed to have been approved. Defects that cannot be discovered within this period, even after careful inspection, must be reported to TRICOR in writing immediately after discovery.
b) In the event of justified complaints, TRICOR shall, at its discretion, rectify defective goods or deliver a replacement within a reasonable period of time.
c) If the Buyer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect. If the buyer chooses compensation for damages after subsequent performance has failed, the goods shall remain with the buyer if this is reasonable for him. Compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply in the case of fraudulent intent.
d) Deviations in sizing, smoothness and purity of the paper, gluing, adhesion, colors, printing, weight differences of up to 5% upwards and downwards, as well as dimensional deviations of ± 1%, but at least 3 mm, are not considered defects. TRICOR shall only be liable for properties of the goods with regard to their usability for a specific purpose after a corresponding written assurance.
e) The warranty period shall be one year from delivery of the goods.
10. Limitation of Liability, Limitation Period for Claims for Damages
a) Claims for damages shall be excluded irrespective of the type of breach of duty, including tortious acts, except in cases of willful misconduct or gross negligence.
b) In the event of a breach of material contractual obligations, TRICOR shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims for loss of profit, saved expenses, claims for damages by third parties and other indirect and consequential damages cannot be demanded unless a quality feature guaranteed by TRICOR is specifically intended to protect the Buyer against such damages.
c) The limitations and exclusions of liability listed under letters a) and b) shall not apply to claims which have arisen due to fraudulent conduct on the part of TRICOR, nor in the case of liability for guaranteed characteristics, for claims under the Product Liability Act or for damages resulting from injury to life, limb or health.
d) Insofar as TRICOR's liability is excluded or limited, this shall also apply to TRICOR's employees, workers, representatives and vicarious agents.
11. Place of Performance, Place of Jurisdication, Applicable Law
a) The place of performance for all mutual obligations arising from the underlying contract shall be Bad Wörishofen.
b) If the Buyer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes shall be TRICOR's place of business. The same shall apply if the Buyer does not have a general place of jurisdiction in Germany or if its place of residence or habitual abode is unknown at the time the action is filed. TRICOR shall also be entitled to take legal action at the Buyer's place of business.
c) Should individual provisions of the contract, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially ineffective provision shall be replaced by a provision whose economic success comes as close as possible to that of the ineffective provision.
d) The law of the Federal Republic of Germany shall apply.
12. Data Protection
TRICOR is entitled to store the customer's data electronically, § 33 BDSG. For the purpose of deciding on the establishment, execution or termination of the contractual relationship, we collect or use probability values, the calculation of which includes address data.