General terms and conditions
MuHeSa Verpackungsmittel und Vertriebs GmbH (dated 01.09.2012)
1. Area of application
The following general trading and shipping conditions are applicable to all offers, deliveries and services concluded with MuHeSA. No additional terms or deviating conditions which are stated in the Customer's orders and/or deliveries shall be effective unless MuHeSa explicitly agrees in writing.
2. Offers, proposals, conclusion of the contract
2.1. Our offers or service descriptions that appear in any printed materials issued by us such as price lists, catalogues or Internet shall be nonbinding. The contract shall be effective only upon receipt of MuHeSa's written confirmation (Order Confirmation) stating that we accept the order, except insofar as not otherwise expressly stipulated.
2.2. Our offers are effective for 10 days. We can make acceptance of the customer’s offer (Order) within this time via an order confirmation.
2.3. Prices, quantity and delivery in an offer shall be considered to be nonbinding and indicative, insofar as not otherwise expressly confirmed. Unless otherwise agreed upon, all orders will not exist until MuHeSa issues a written confirmation of order. All agreements that are made between MuHeSa and the Customer shall be put in writing in the contract.
2.4. Prices shall be quoted ex works or ex warehouse. The Customer shall be fully responsible for any charges for VAT, carriage and insurance in addition to the price for the Goods. Unless otherwise stated in writing, quoted prices do not include printing plates, art charges, freight, upcharges, any applicable excise, sales, use or similar taxes, tooling of any kind. In the case of international sales the Customer agrees to pay all duties, taxes, fees and other charges imposed by any government or local authority as well as insurances.
2.5. To the extent that MuHeSa places test pieces or samples at the disposal of the Customer, these shall merely serve to specify in more detail the works the Company is to provide. No guarantee is linked thereto.
3.1. Unless otherwise stated in the order confirmation, all shipments shall be effected on an “ex works” basis (EXW – Incoterms 2000) using standard methods for packaging and shipping. In the case of free shipment we reserve the right to despatch the goods at our own discretion.
3.2. Delivery deadlines shall be deemed to begin as from the date of our order confirmation, but not before clarification of all details for execution of the order and receipt of all materials required for execution of the order and of other details to be supplied by the Customer.
3.3. The Customer shall be entitled to cancel the contract, insofar as we fail to deliver within an extended delivery period of 8 weeks set by the Customer. In the event of force majeure or any other impediment that is beyond our control, we shall be relieved of our obligation to perform the contract. The Customer shall be entitled to assert a claim for foreseeable damages arising from any default on delivery on our part only insofar as such default is attributable to gross negligence or willful misconduct on our part.
3.4. Insofar as any delivery delay occurs that is attributable to the Customer or if the Customer fails to take delivery, we shall be entitled to either (a) require the customer to indemnify us for any damages incurred by us as a result of such breach or (b) cancel the contract.
3.5. All claims for loss or damage during transit must be made against the carrier by notation on the freight bill or delivery receipt. A claim by the Customer which is based on any defect in the quality, quantity or condition of the Goods shall be notified in writing to MuHeSa (where the defect or failure was not apparent on reasonable inspection) within 7 days of the discovery of the defect or failure.
4.1. Unless otherwise agreed in writing between the parties, invoices become due immediatelly. MuHeSa reserves the right to ask the Customer for payment for the total price of the Goods and any applicable charges for VAT, carriage and insurance before delivery.
4.2. If payment is not made by the due date (according to §284 para.3 BGB/ German Civil Code), MuHeSa shall be entitled to charge interest at the rate of 8 per cent over the then current base rate on the amount outstanding from the due date together with other recovery costs of 10 Euro per every request for payment.
4.3. We are entitled to demand advance payments prior to dispatch. If the collectability of our claims is endangered by a decline of the buyer’s creditworthiness, we shall be entitled to continue further deliveries and services only against advance payment.
5. Reservation of ownership
5.1. All goods delivered by MuHeSa remain the property of MuHeSa until full payment has taken place. Any possible redemption of goods shall only take place as a precaution; this shall not be considered a withdrawal from the contract, even if instalments have subsequently been permitted.
5.2. The Customer is obligated to handle the purchased goods with care, as long as the ownership title has not been transferred. The Customer shall notify us immediately in writing of any pledges or other third-party interventions, since the title of any goods does not pass to the purchaser until full payment has been received by MuHeSa.
5.3. In the event that the Customer processes the goods in which title is reserved so that a new mobile good in created, this shall take place on account of MuHeSa, which shall have title in the new good. The Customer shall not acquire any property right in respect of the new good. If, nevertheless, the retention of title becomes extinct due to any circumstances, MuHeSa and the Customer shall already now agree that the title to the goods shall upon their processing pass to MuHeSa, who shall accept such transfer. The Customer shall in this case keep the new good of which MuHeSa is owner in custody for MuHeSa. Such custody shall be free of charge for MuHeSa.
5.4. If the purchased good is inseparably combined with other goods not belonging to us, we acquire the joint ownership of the new good at a ratio of the value of the purchased good (final invoice) to the other combined goods at the time of combination.
5.5. The Customer hereby assigns the claim from the resale of the reserved goods to MuHeSa, even so far as the reserved goods have been processed. If aside from our goods subject to retention of title the processed item only contains objects either belonging to the Customer or delivered under so-called simple reservation of title, the Customer shall assign the entire purchase price value to us. Otherwise, i.e. for concurrence of advance assignment of receivables to multiple suppliers, we are entitled to a fraction of the claim, proportional to the invoice value of our goods subject to retention of title to the invoice value of other processed objects.
5.6. Upon the Customer's request, we agree to release the securities which we are entitled to insofar as the realizable value of our securities exceeds the receivables to be secured by more than 10 %. We are responsible for the selection of securities to be released.
5.7. Provided that he is able to meet his payment obligations towards MuHeSa, the Customer is entitled to collect the accounts receivable for himself until revoked. In the event of a stopped payment, an application for insolvency proceedings or the filing for bankruptcy or a judicial or extra-judicial settlement proceeding, a disputed check or bank note or seizure, the right to further sell or process the goods and to collect receivables shall be rendered null and void. Any assigned outstanding receivables that are received at a later point of time shall immediately be collected on a special account.
6. Over-deliveries, short deliveries
MuHeSa reserves the right to over or under supply by 20% of the quantity ordered in the case of special orders or custom print due to the manufacturing process.
Call orders shall oblige the Customer to accept the partial quantity on which the call order is based. In case of call orders without a firm delivery date MuHeSa reserves the right to set the period of acceptance of one week after an appropriate period. Thereafter the payment shall be due and the storage costs will be charged. If the customer fails to take the goods after the elapse of the statutory extension period, MuHeSa shall have the right to rescind any open agreements and/or to require compensation on grounds of non-fulfilment.
8. Claims and Guarantee
8.1. The Customer agrees to promptly inspect all Goods as received, and any rejection or claim based on nonconformity must be made in writing no later than seven (7) days after delivery for nonconformities reasonably discoverable on inspection, and no later than seven (7) days after discovery for latent nonconformities. If Customer fails to give such written notice within the applicable time period, the Goods will be deemed accepted, will not be subject to revocation of acceptance, and Customer will be deemed to have absolutely waived any claim for defects.
8.2. The burden of proof for any defects, time of discovery and notice of defects in due form and time shall lie with the Customer.
8.3. MuHeSa shall be under no liability in respect of any damage caused by the incorrect storage of the Goods.
8.4. Customary industry conditions apply, in particular examination and measurement clause of The National Association of Plastics Processors (GKV) for packaging and foils in the respective latest version. All foils supplied and products thereof are subject to tolerances on width and length, as well as weight and thickness fluctuations.
8.5. Minor deviations in quality, measurement etc. will not be accepted as a reason for rejection. These deviations result from the applied procedure and material and are accepted as being inevitable and customary. Indications concerning colour fastness or non-perishability can never be deemed to be warranties. Register inaccuracy up to 5 mm is possible and shall not be a cause for complaint.
8.6. Defective amount up to 3 % of the total quantity shall be considered proper delivery. Any defective parts of the delivery shall not be the cause for defects liabilty claims regarding the whole delivery, if it is possible to separate the defective and non-defective parts using reasonable means.
8.7. MuHeSa may replace or repair the Goods at its discretion. Return shipments must be agreed on by MuHeSa. The Customer is required to ensure that any Goods being returned to MuHeSa are safely and securely packaged to ensure that they are returned undamaged. Only complete and undamaged returns can be accepted and refunded.
9. Rights to offset, right of retention
Rights to offset and right of retention are only available to the Customer, if his counterclaims are uncontested or have been legally determined.
10. Disposal and recycling
Quoted prices do not include additional costs for participation in global recycling system. The Customer is obliged to check himself whether he has to participate in a collection and recovery system and to license the relevant product by himself at his own expense if necessarily.
11. Applicable law and competent court
German law is applicable to all agreements provided by and entered into with MuHeSa. All disputes will be adjudicated by the competent district court -Amtsgericht Hennigsdorf- at the place of business of MuHeSa in 16761 Hennigsdorf.