General Terms and Conditions of PAPACKS Sales GmbH

§ 1 General 

(1) The terms and conditions of sale and delivery of PAPACKS Sales GmbH, which the buyer expressly recognizes upon receipt of the order confirmation, apply exclusively to all deliveries. Deviating terms and conditions of purchase of the buyer are not binding for PAPACKS Sales GmbH, even if PAPACKS Sales GmbH does not expressly object to them in writing.

(2) Deviations from these terms and conditions are only effective if PAPACKS Sales GmbH expressly confirms them to the buyer in writing. However, such changes only relate to the respective order; they have no retroactive effect and do not apply to further orders and deliveries, unless these changes have been confirmed again in writing by PAPACKS Sales GmbH.

(3) The goods manufactured by PAPACKS Sales GmbH comply with the requirements of the Consumer Goods Ordinance of 10.04.1992 in the currently valid version. The relevant food safety declarations are available for all products in the current version and will be handed over to the buyer on request.

§ 2 Offers, deliveries, force majeure, withdrawal 

(1) All offers from PAPACKS Sales GmbH are always and in all parts non-binding and subject to change. Declarations of acceptance and all orders require the express written confirmation of PAPACKS Sales GmbH to be legally effective. The same applies to additions, amendments or collateral agreements.

(2) Forms, dimensions, weights or other performance data are only binding for PAPACKS Sales GmbH if these properties are expressly agreed in writing.

(3) Sales employees of PAPACKS Sales GmbH are not authorized to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract.

(4) Delivery dates or delivery periods, which can be agreed as binding or non-binding, must be made in writing. Delivery periods shall commence upon conclusion of the contract, unless otherwise contractually agreed. If changes to the contract are subsequently agreed, a new delivery date or delivery period must be agreed at the same time if necessary.

(5) The delivery periods are automatically extended in the event of unforeseen obstacles that are outside the sphere of influence of PAPACKS Sales GmbH or have occurred at subcontractors, insofar as such an obstacle can be proven to have a significant influence on the delivery.

(6) PAPACKS Sales GmbH is not responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for PAPACKS Sales GmbH – this also includes subsequently occurring material procurement difficulties, operational disruptions, strikes, lockouts, official requirements, etc., even if they occur at suppliers of PAPACKS Sales GmbH or their subcontractors – even in the case of bindingly agreed deadlines and dates. They entitle PAPACKS Sales GmbH to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time – even in the case of (relative) fixed-date transactions – or to withdraw from the contract in whole or in part due to the part not yet fulfilled. The rights arising from paragraph (8) below remain unaffected by this.

(7) PAPACKS Sales GmbH is entitled to reasonable partial deliveries and reasonable partial services at any time.

(8) PAPACKS Sales GmbH is entitled to withdraw from the contract if, despite the conclusion of a corresponding purchase contract, it does not receive the delivery item or does not receive it on time; the responsibility of PAPACKS Sales GmbH for intent or negligence remains unaffected in accordance with § 5 of these conditions. PAPACKS Sales GmbH will inform the buyer immediately that the delivery item is not available on time and, if PAPACKS Sales GmbH wants to withdraw, exercise the right of withdrawal immediately; PAPACKS Sales GmbH will immediately reimburse the buyer for the corresponding consideration in the event of withdrawal. The rights according to the above paragraph (6) remain unaffected.

§ 3 Transfer of risk 

(1) The risk is transferred to the buyer as soon as the delivery of goods has been handed over to the person carrying out the transport or has left the warehouse of PAPACKS Sales GmbH for shipment. (2) If shipping becomes impossible through no fault of PAPACKS Sales GmbH, the risk is transferred to the buyer with the notification of readiness for dispatch.

§ 4 Liability for defects, notices of defects, consequential damages 

(1) In the event of a justified notice of defects, PAPACKS Sales GmbH will, at its own discretion, deliver a replacement or rectify the defect. The buyer is obliged to give PAPACKS Sales GmbH the opportunity to repair or replace the goods within a reasonable period of time after prior consultation within normal working hours. Multiple exchanges or multiple repairs are permitted.

(2) The buyer must inspect the goods immediately upon receipt and notify PAPACKS Sales GmbH in writing of any recognizable defects and any shortages immediately, at the latest within one week of receipt of the goods; to meet the deadline, it is sufficient to send the notification within the deadline. The defects must be described in as much detail as possible for the buyer. If the buyer fails to make this written notification, the goods shall be deemed to have been approved. If such a defect is discovered later, it must be reported in writing immediately after discovery, otherwise the goods shall be deemed to have been approved after one week at the latest, also with regard to this defect.

(3) Without prejudice to further claims by PAPACKS Sales GmbH, in the event of an unjustified notice of defects, the buyer must reimburse PAPACKS Sales GmbH for the expenses incurred to inspect and – if requested – to remedy the condition complained of as a defect.

(4) The customer’s obligation to inspect and give notice of defects also exists if goods other than those ordered or a quantity of goods other than those ordered have been delivered, provided that the delivered goods do not obviously deviate so significantly from the order that PAPACKS Sales GmbH had to consider the buyer’s approval to be excluded.

(5) The Buyer is not entitled to assert claims and rights due to defects if he has not made due payments and insofar as the amount due (including any payments made) is in reasonable proportion to the value of the – defective – delivery. The liability for defects shall lapse if the goods are not modified, handled or processed in accordance with the technical specifications or improperly. (The technical specifications must be requested separately for each product). The buyer is not entitled to make returns without prior agreement with PAPACKS Sales GmbH. Returns made despite this will not be accepted by PAPACKS Sales GmbH. Returns are to be loaded carriage paid.

(6) Any statutory warranty claims against PAPACKS Sales GmbH are only available to the direct buyer and are not assignable.

§ 5 Limitation of liability 

(1) PAPACKS Sales GmbH is liable for intent and gross negligence in accordance with the statutory provisions. In the event of gross negligence on the part of simple vicarious agents, liability is limited to the amount of foreseeable damage that can typically be expected to occur, unless it is damage resulting from injury to life, limb or health.

(2) PAPACKS Sales GmbH is only liable for slight negligence in the event of a breach of an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner can regularly rely, as well as in the event of damage resulting from injury to life, limb or health. In the event of a breach of essential contractual obligations and in the event of slight negligence, liability is limited to the amount of foreseeable damage that can typically be expected to occur.

(3) Liability for defects in the event of fraudulent concealment of the defect by PAPACKS Sales GmbH or in the event of a guarantee assumed by PAPACKS Sales GmbH for the quality of the delivery item in accordance with the statutory provisions remains unaffected.

(4) The liability of PAPACKS Sales GmbH under the Product Liability Act remains unaffected.

(5) A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

§ 6 Refusal of acceptance 

(1) If the buyer is in arrears with the acceptance of the object of purchase for more than 14 days from receipt of the notification of readiness, PAPACKS Sales GmbH can set the buyer a grace period of 14 days in writing, with the declaration that PAPACKS Sales GmbH will refuse acceptance after this period has expired. After unsuccessful expiry of the grace period, PAPACKS Sales GmbH is entitled to withdraw from the purchase contract by written declaration and / or to demand compensation.

(2) It is not necessary to set a grace period if the buyer seriously and finally refuses acceptance.

(3) If PAPACKS Sales GmbH demands compensation for damages due to non-acceptance, this amounts to 15% of the purchase price. The amount of damage is to be set higher or lower if PAPACKS Sales GmbH or the buyer proves higher or lower damage. PAPACKS Sales GmbH reserves the right to assert further claims for damages.

§ 7 Prices and payments 

(1) Prices are not fixed prices (all-inclusive prices), unless these are expressly agreed in writing as fixed prices. In general, orders are due and payable to PAPACKS Sales GmbH at the beginning of the order and after order confirmation at 50% of the order amount and the remaining 50% upon delivery of the goods to the customer. Invoices issued are payable within 10 days of the invoice date without any deductions (net cash). The acceptance of bills of exchange must in any case be agreed in writing in advance, if this is not the case, the submission does not have a fulfilling effect. In the case of checks and bills of exchange, the buyer’s debt shall only be deemed paid upon final, unconditional encashment. Bills of exchange or discount charges shall be borne by the buyer.

(2) PAPACKS Sales GmbH is entitled, despite any contrary provisions of the buyer, to first offset payments against its older debts; PAPACKS Sales GmbH will inform the seller of the type of offsetting that has taken place. If costs and interest have already been incurred, PAPACKS Sales GmbH is entitled to offset the payment first against the costs, then against the interest and finally against the main claim.

(3) A payment is only deemed to have been made when PAPACKS Sales GmbH can dispose of the amount. In the case of checks, payment is only deemed to have been made when the check is cashed.

(4) If the buyer is in arrears with payments, PAPACKS Sales GmbH is entitled to charge interest on arrears at a rate of 8 percentage points above the base interest rate applicable in accordance with § 247 BGB from the time in question. If higher interest can be demanded for another legal reason, PAPACKS Sales GmbH reserves the right to do so.

(5) If the buyer does not meet his payment obligations or if PAPACKS Sales GmbH becomes aware of other circumstances that call into question the creditworthiness of the buyer, PAPACKS Sales GmbH is entitled to make the remaining debt due, even if PAPACKS Sales GmbH has accepted checks or bills of exchange. In this case, PAPACKS Sales GmbH is also entitled to demand advance payments or security payments.

(6) The Buyer shall only be entitled to set-off, retention or reduction, even if claims for defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed.

§ 8 Offsetting 

The buyer is only entitled to offset if the counterclaims have been legally established or are undisputed.

§ 9 Retention of title 

(1) The delivery item remains the property of PAPACKS Sales GmbH until all claims to which it is entitled against the buyer from the business relationship have been fulfilled.

(2) The buyer is permitted to process or transform the delivery item (“processing”). The processing takes place for PAPACKS Sales GmbH. Insofar as PAPACKS Sales GmbH does not acquire ownership of the new goods according to the above, PAPACKS Sales GmbH and the buyer agree that the buyer grants PAPACKS Sales GmbH co-ownership of the new goods in the ratio of the value (gross invoice value) of the delivery item belonging to PAPACKS Sales GmbH to that of the other processed goods at the time of processing. The above sentence applies accordingly in the event of inseparable mixing or combination of the delivery item with goods not belonging to PAPACKS Sales GmbH. Insofar as PAPACKS Sales GmbH acquires ownership or co-ownership of objects in accordance with this § 9 (retention of title), the buyer shall store them for PAPACKS Sales GmbH with the care of a prudent businessman.

(3) In the event of the sale of the delivery item or the new goods, the buyer hereby assigns his claim from the resale against his customer with all ancillary rights to PAPACKS Sales GmbH as security, without the need for further special declarations. The assignment applies including any balance claims. However, the assignment only applies to the amount that corresponds to the price of the delivery item invoiced by PAPACKS Sales GmbH. The share of the claim assigned to PAPACKS Sales GmbH is to be satisfied with priority.

(4) Until revoked, the buyer is authorized to collect the claims assigned to PAPACKS Sales GmbH in accordance with this § 9 (retention of title). The buyer will immediately forward payments made on the assigned claims up to the amount of the secured claim to PAPACKS Sales GmbH. In the event of legitimate interests, in particular in the event of default of payment, suspension of payment, opening of insolvency proceedings, bill protest or justified indications of over-indebtedness or imminent insolvency of the buyer, PAPACKS Sales GmbH is entitled to revoke the buyer’s right to collect. In addition, PAPACKS Sales GmbH can, after prior warning, disclose the assignment of security, realize the assigned claims and demand the disclosure of the assignment of security by the buyer to the customers. (5) Upon request, the buyer must provide PAPACKS Sales GmbH with the information required to assert their rights against the customer and hand over the necessary documents. (6) During the existence of the retention of title, the buyer is prohibited from pledging or transferring ownership by way of security. In the event of seizure, confiscation or other dispositions or interventions by third parties, the buyer must notify PAPACKS Sales GmbH immediately. The resale of the delivery item or the new goods is only permitted to resellers in the ordinary course of business and only under the conditions that the payment of the equivalent value of the delivery item is made to the buyer. The purchaser must also agree with the buyer that the buyer only acquires ownership upon this payment.

(7) Insofar as the realizable value of all security rights to which PAPACKS Sales GmbH is entitled exceeds the amount of all secured claims by more than 10%, PAPACKS Sales GmbH will release a corresponding part of the security rights at the request of the buyer. It is assumed that the requirements of the previous sentence are met if the estimated value of the collateral to which PAPACKS Sales GmbH is entitled reaches or exceeds 150% of the value of the secured claims. PAPACKS Sales GmbH is entitled to choose between different security rights when releasing.

(8) In the event of breaches of duty by the buyer, in particular default in payment, PAPACKS Sales GmbH is entitled, even without setting a deadline, to demand the return of the delivery item or the new goods and / or – if necessary after setting a deadline – to withdraw from the contract; the buyer is obliged to surrender. The request for the return of the delivery item / new goods does not constitute a declaration of withdrawal from PAPACKS Sales GmbH, unless this is expressly declared.

§ 10 Place of performance and jurisdiction 

(1) The place of performance is Cologne.

(2) For all present and future claims arising from the business relationship with the buyer, including bill of exchange and check claims, Cologne is the exclusive place of jurisdiction of the registered office of PAPACKS Sales GmbH.

§ 11 Applicable law 

(1) German law applies exclusively to these terms and conditions and the entire legal relationship between PAPACKS Sales GmbH and the buyer.

(2) The application of international private law and the UN Convention on Contracts for the International Sale of Goods is expressly excluded.

§ 12 Partial ineffectiveness 

(1) Should one or more provisions in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.

(2) The legally invalid provisions shall then be replaced by legally valid provisions that come closest to the economically intended purpose of the invalid provision.

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