General terms and conditions of
Spilker GmbH, Handelsstraße 21-23, 33818 Leopoldshöhe
§ 1 Scope, Form
(1) The general terms and conditions set out below shall apply as amended to all legal acts of Spilker GmbH (hereinafter called “we”, “our” or “Spilker”), in particular, offers, order confirmations, deliveries and services, as well as other legally binding statements and to all agreements and business relationships established between Spilker GmbH and its customers (hereinafter called “you” or “customer”), provided the customer is an entrepreneur as defined by Section 14 BGB (German Civil Code), a legal entity under public law or public-sector entity with special assets. The customer shall ensure that he acts as an entrepreneur as defined by Section 14 BGB, a legal entity under public law or public-sector entity with special assets.
(2) These general terms and conditions shall also apply to all future deliveries, services or offers to the customer, as well as to future agreements and business relationships with the customer, even if they are not the subject of a further separate agreement. They shall also apply as a framework agreement, as amended on the date of the customer’s order or in the last version communicated to the customer in writing, even if we do not refer to these Terms again in individual cases.
(3) These general terms and conditions shall apply to the exclusion of any other terms. We hereby explicitly object to any adverse third party terms and conditions. They shall only become part of the contract, if expressly agreed by us. This shall also apply, if the customer stipulates a special form for the objection and/or we deliver to our customer without reservation and with full knowledge of his general terms and conditions. In the event that any adverse terms and conditions are excluded, these shall be replaced by statutory provisions.
(4) Any amendments, additions and collateral agreements, as well as other separate agreements shall take precedence over these Terms. Subject to proof of the aforementioned, their content and existence shall be governed by a written agreement or written confirmation from us. Any legally relevant declarations and notifications provided to us by the customer after conclusion of contract (e.g. deadlines, notice of defects, reminders, rescission and reduction notices) shall only be valid or effective if made in writing.
§ 2 Conclusion of Contract
(1) All offers made by us are subject to change and are non-binding, unless they are expressly confirmed as binding or include a specific term of acceptance. This also applies, if we have transferred catalogues, technical documentation or other product descriptions or documents to the customer – also in electronic format, to which we have reserved rights to ownership and copyrights.
(2) A contract with the customer shall come into effect upon his placement of an order deemed to be a binding offer of contract, provided we either expressly or implicitly accept the offer by executing the agreement (e.g. planning, production or delivery), whereupon in the latter case, receipt of the notice of acceptance in accordance with Section 151 clause 1 BGB (German Civil Code) can be waived.
(3) We shall reserve all rights to ownership and copyrights for any offers and quotes issued by us, as well as any drawings, diagrams, calculations, prospects, catalogues, models, tools and other documentation and resources. Without our express consent, the customer is not allowed to divulge or disclose these items nor their contents to third parties. He is also not allowed to use or replicate the aforementioned items himself or allow them to be used or replicated by third parties. Upon request, he must fully return these items to us and if necessary, destroy any copies he may have made thereof, if they are no longer required by himself in the normal course of business or if negotiations do not result in the conclusion of a contract. This shall not include the storage of electronic data provided for the purpose of standard data-backup measures.
(4) If the customer makes any amendments to the order after placing the order and/or makes any amendments to requirements (in particular, replaces sample material, changes or subsequently designates specifications or other requirements), even if based on our own recommendation, these order amendments shall be separately assigned and remunerated as part of a supplementary order.
§ 3 Prices and Payment
(1) All prices quoted are net prices in EUROS and are ex works, exclusive of statutory VAT at a current rate of 19 %. They shall apply to the scope of service and delivery specified in the order confirmations or if no order confirmation exists in an individual case, the aforementioned prices shall apply to the scope of service and delivery specified in the customer’s order. Any items used by us for production, in particular films, printing plates, printing tools, stamping, cutting and embossing dies shall continue to remain our property and shall not be included in the delivery, if they are invoiced separately.
(2) In the event of a sales shipment (Section V(1) of these Terms), the customer shall be charged for all transport expenses from the warehouse, as well as for any costs incurred from transport insurance required by the buyer and all expenses incurred for customs, other charges, taxes and public levies.
(3) If the agreed prices are based on our list prices and delivery is executed more than four months after conclusion of contract, the list prices valid at the time of delivery shall apply. We shall also be entitled to make adjustments to the agreed prices, if the costs (e.g. for salaries and wages, material, general business expenses) on which our calculation is based have risen between the date of conclusion of contract and delivery. In the event of clause 2, the customer shall be entitled to withdraw from the contract, if the price increase exceeds the originally agreed price by more than 15 %. In this case, he shall be obliged to pay us for any expenses incurred as at the date of withdrawal.
(4) All payments for invoice amounts shall be due within 30 days of the invoice date without discount, unless otherwise agreed in writing. Payments are considered punctual, if received by us by the due date. We shall not accept any payments via cheque or bills of exchange, unless otherwise agreed in writing.
(5) The customer shall only be entitled to offset claims or assert a right of retention for such claims, if counter claims are undisputed or legally binding.
(6) If, after conclusion of contract, a deterioration of the customer's credit rating becomes known to us, thus endangering the performance of our outstanding claims for payment under the respective contractual relationship, we shall be entitled to solely execute or render any outstanding deliveries and services subject to the customer providing advance payment or security for the aforementioned performance.
§ 4 Delivery and Delivery Times
(1) All deliveries are ex works, unless otherwise agreed in writing.
(2) All delivery times and deadlines for deliveries and services are only approximate, unless we have expressly consented to or agreed upon a fixed deadline or date. If a shipment has been agreed, all delivery times and deadlines are based on the date of handover of the goods to a carrier, freight forwarder or third party contracted to transport the goods. If shipping delays occur for shipments abroad, in particular, due to customs clearance, the customer shall not be entitled to assert any rights against us, if we are not responsible for the delay.
(3) If the customer requests any changes to the order after conclusion of contract, delivery times shall be extended and delivery deadlines postponed accordingly.
(4) We shall not accept any liability for deliveries that cannot be rendered or for delivery delays, in the event of force majeure and other circumstances beyond our control (e.g. any operational disruptions, difficulties in procuring materials or energy, transport delays, strikes, legal lockouts, employee, energy or raw material shortages, difficulties in obtaining the required official permits, administrative measures or non-delivery, wrong delivery or delayed delivery by suppliers) which were unforeseeable at the time of conclusion of contract. If such events make it difficult or impossible to render the delivery or service and the impediment is not of a temporary nature, we shall be entitled to withdraw from the contract. In the event of obstructions of a temporary nature, the delivery and service times shall be extended or the delivery and service deadlines postponed by the duration of the impediment plus an appropriate lead time. If the customer cannot reasonably be expected to accept the delivery or service following a delay, he shall be entitled to withdraw from the contract by giving us immediate written notice of termination.
(5) Statutory provisions determine whether our delivery is in default. However, the customer must submit a reminder. In the case of default on our part, the customer shall be entitled to request a lump-sum compensation for non-performance of delivery. The lump-sum compensation amounts to 0.5 % of the net price (delivery value) for each full calendar week of default, but not more than 5 % of the delivery value of the goods in default. We reserve the right to either establish that no damage have been incurred for the buyer or that the damage incurred are lower than the aforementioned lump-sum compensation. Furthermore, this does not affect Section VIII of these Terms.
(6) This does not affect the customer’s rights in accordance with Section VII of these Terms or our statutory rights, in particular, in the event of an exclusion of our duty to perform (e.g. performance and/or subsequent performance becomes impossible or unreasonable).
§ 5 Passing of Risk, Acceptance, Default in Acceptance
(1) If requested, the goods shall be shipped to another place of destination at the customer’s expense (sales shipment). Unless otherwise agreed, we shall be entitled to select the method of shipment (in particular, the transport company, shipping route) and packaging.
(2) All risks are transferred to the customer no later than the date of handover of the goods (determined by the date on which loading commences) to a carrier or freight forwarder or any other third party appointed to handle the consignment. This also applies, if part shipments are dispatched or we have also performed other services (dispatch or installation), including those free of charge. If shipment or handover is delayed due to circumstances within the customer’s control, all risks shall be transferred to the customer as of the date the goods were ready for dispatch and we have notified the customer to this effect.
(3) The consignment shall only be insured against theft and breakage, as well as transportation, fire and water damage or other insurable risks at the customer’s express request and own expense.
(4) In the event an acceptance process is required, the purchased item shall be considered accepted, if
• delivery and if applicable, installation of the aforementioned item has been completed,
• we have notified the customer hereof with reference to the deemed acceptance of the aforementioned item in accordance with Section V (4) of these Terms and have requested acceptance of the goods,
• twelve working days have elapsed since delivery or installation or the customer has started using the purchased item (e.g. has started operating the delivered unit) and in this case, six working days have elapsed since delivery or installation and
• the customer has failed to declare acceptance within this period for any reason other than that of a defect indicated to us, which makes its use impossible or considerably impairs its use.
§ 6 Retention of Title
(1) All goods sold shall remain our property until payment is received in full for present and future claims from the sales contract and from a current business relationship (secured claims).
(2) No reserved goods may be pledged or assigned to third parties by way of security prior to payment in full of the secured claims. The customer shall immediately inform us in writing, if an application is filed for the initiation of insolvency proceedings or third parties are given access (e.g. pledges) to goods belonging to us.
(3) In the event of a breach of contract by the customer, in particular, non-payment of the purchase price due, we shall be entitled to withdraw from the contract or/ and to request the return of the reserved goods in accordance with statutory provisions. Any request for the return of the goods shall not necessarily constitute withdrawal from the contract. Rather, we shall be entitled to request the return of the goods, as well as to reserve the withdrawal from contract. If the customer does not pay the purchase price due, we shall solely be entitled to exercise these rights, if we have previously set an appropriate grace period for payment without success or if the setting of such a grace period may be waived in accordance with statutory provisions.
(4) In accordance with point (c) set out below, the customer shall be entitled, until revoked, to continue to sell and/or process all reserved goods during the normal course of business. In such a case, the following regulations shall also apply:
(a) In the case of products which are manufactured through the processing, mixing or combining of our goods, the retention of title shall continue to apply to such processed, mixed or combined goods at their full value, with us deemed as the manufacturer. If the ownership rights of third party continues to exist at the time the goods are processed, mixed or combined with their goods, we shall acquire co-ownership rights to the new item in proportion to the invoice value of the processed, mixed or combined goods. The product created by processing, mixing and combining goods is subject to the same conditions that apply to the reserved goods delivered.
(b) The customer hereby assigns to us by way of security all claims against third parties resulting from the resale of the goods or product in full or to the extent of any co-ownership share in accordance with the above paragraph. We hereby accept such an assignment. The customer’s obligations stated in para. 2 shall also apply with regard to the claims assigned.
(c) We and the customer shall remain authorised to collect all claims. We shall undertake not to collect claims, provided the customer fulfils his payment obligations to us, no limitation in his ability to perform exists and we do not assert our reservation to title through exercising a right in accordance with para. 3. However, in such a case, we shall be entitled to request that the customer notifies us of any claims transferred to us and their debtors, provides all information required for collection, issues all corresponding documentation and notifies all debtors (third parties) of the assignment. Moreover, we shall be entitled, in such a case, to revoke the customer’s authorisation to further sell and process all reserved goods.
(d) If the realisable value of the securities exceeds our claims by more than 20%, at the customer’s request, we shall undertake to release securities at our discretion.
§ 7 Liability of Material Defects, Involvement of Customer
(1) All specifications made by us regarding the delivery or service item (e.g. weights, dimensions, serviceability, tolerances and technical specifications), as well as any representation of the aforementioned (e.g. drawings and diagrams) are only approximate values, unless the use for the purpose intended by the contract requires precise conformity. These do not constitute guaranteed quality features, but are descriptions or designations of the delivery or service. Any differences in accordance with market standards and differences which are the result of statutory provisions or technical improvements and the replacement of components by equivalent parts are acceptable, unless they compromise the use for the purpose intended by the contract. Technical specified tolerances in size, quality, material, weight and other features do not constitute defects.
(2) (a) If the customer provides sample material (e.g. labels, carrier material) and the product manufactured by us is intended for the purpose of processing the aforementioned material, unless otherwise agreed in writing, it is adequate, if the product manufactured by us is only suitable for processing the sample material and is not suitable for other materials.
(b) If the customer stipulates specifications and/or drawings for the product manufactured by us, the customer shall be responsible for any errors, inaccuracies and doubts about clarity, unless, due to gross negligence, we have not detected the error, inaccuracy or doubt and have not notified the customer thereof in due time.
(c) If the customer only provides abstract specifications for the product manufactured by us, by solely specifying the brand and model of the machine for which the aforementioned product is intended, the customer shall be responsible, if the machine is no longer in the delivery state (e.g. due to subsequent changes made by the customer) or if the customer has purchased a new or other machine since his last order and did not inform us separately when placing the order, unless, due to gross negligence, we have not recognised that the product manufactured by us cannot be readily used by the customer on the aforementioned grounds.
(d) The product manufactured by us is deemed to have no defects, if it conforms to the features requested by the customer and/or to the requirements on the functional specification document stipulated by him and/or developed in collaboration with ourselves.
(3) The warranty period shall be one year from delivery or if acceptance is required, from the date of acceptance. This period does not apply to any claims for damages from the customer in the case of death, personal injury or damage to health or in the case of deliberate or grossly negligent breaches of duty by us or our subcontractors that shall expire in accordance with statutory provisions.
(4) The delivered items must be carefully inspected by the customer or a third party he has appointed, immediately after delivery. The aforementioned items shall be deemed to be approved, if we have not received written notification of defects pertaining to visible defects or other defects detected in the course of a prompt, thorough examination within seven working days following delivery of the aforementioned items. With regard to any other defects, the delivery items are deemed to be approved by the customer, if we have not received notification of the defect within seven working days after the date on which the defect was identified. However, if the defect has been identified by the customer at an earlier date during normal use, the earlier date shall apply for the beginning of the complaint period. At our request, the customer shall return any defective delivery item to us freight paid. In the case of legitimate notice of defects, we shall reimburse the costs for the most inexpensive means of transport. This shall not apply, if there is an increase in costs, because the delivery item is at a location other than the one determined for intended use.
(5) In the case of any material defects to the delivery items, we shall undertake and be entitled to repair or replace these items at our own discretion within a reasonable period of time. Supplementary performance shall not include removal of the defective item or reinstallation of the aforementioned item, if we were not originally obligated to install the item. In the case of replacement, the buyer shall return the defective item to us in accordance with statutory provisions. In the case of failure to perform i.e. if repair or replacement is impossible, unreasonable or is refused or unreasonably delayed, the customer shall be entitled to withdraw from the contract or reduce the selling price appropriately. This does not affect special statutory provisions for the end delivery of goods to a consumer (supplier regress in accordance with Sections 478, 479 BGB (German Civil Code).
(6) If we are liable for any defect, the customer shall be entitled to request claims for damages pursuant to the specific requirements set out in Section VIII.
(7) If the customer has to provide materials, tools and samples, the delivery shall be sent to us as a free domicile shipment (frei Haus). Raw materials, semi-finished and finished goods and other items provided by the customer shall only be stored beyond the delivery deadline, if special payment is made and this has been agreed in writing. Unless otherwise agreed, we shall be entitled to dispose of or destroy these items at the customer’s expense, following a previous request to collect accompanied by a grace period of at least two weeks.
(8) The warranty shall no longer be valid, if the customer or a third party changes the delivery item without our consent, thereby making the repair of the item impossible or unreasonably difficult. In such a case, the customer shall be charged all additional repair costs incurred by the change.
(9) No warranty for defects shall apply to the delivery of used items agreed in individual cases with the customer.
§ 8 Liability for Damages in Case of Negligence
(1) Our liability for damages, irrespective of the legal grounds, in particular resulting from impossibility of delivery, delay, defective or wrong delivery, breach of contract, breach of duty during contractual negotiations and tortious act, to the extent they are subject to negligence, shall be limited in accordance to this Section VIII.
(2) We shall not assume any liability in the case of ordinary negligence by our executive bodies, legal representatives, employees or other subcontractors, unless this constitutes a breach of material contractual obligations. Material contractual obligations include the duty to duly execute delivery and install the delivery item, to ensure no defects in title, as well as such defects, which considerably compromise the functionality or usability of this item. This also includes a duty to provide advice, to protect and exercise proper care, enabling the customer to use the delivery item as stipulated by the contract or with the aim of protecting life and limb of the customer’s personnel or protecting the customer’s property from considerable damage.
(3) If we are generally liable for damages in accordance with Section VIII (2), this shall be limited to such damages anticipated by us as a potential consequence of a breach of contract at the time of conclusion of contract or should have been anticipated by us when applying due care and attention. Indirect damage and consequential damage, which are a result of defects to the delivery item, may only be replaced, if such damage may be typically expected when the delivery item is used for its intended purpose.
(4) In the event of liability for ordinary negligence, our obligation to pay compensation for physical damages and other resulting damages to property shall be limited to 5,000,000 EUR (in words: five million euros) per claim (according to the current coverage of our product liability insurance or liability insurance), even if this constitutes a case of breach of material contractual obligations.
(5) The aforementioned exclusion and limitation of liability clauses shall also apply to all our executive bodies, legal representatives, employees and other subcontractors.
(6) If we provide technical information or consultancy services and such information or services are not part of the scope of services agreed in our contractual obligations, they shall be offered at no expense and are subject to exclusion of liability.
(7) The limitations in this Section VIII shall not apply to liability for wilful misconduct, guaranteed quality features, loss of life, personal injury or harm to health or under the German Product Liability Law.
(8) In the case of a breach of duty that is not attributable to a defect, the customer shall solely be entitled to withdraw from or terminate the contract, if we are responsible for breach of duty. The customer’s free right of termination (in particular, in accordance with Sections 651, 649 BGB (German Civil Code) is hereby excluded. Furthermore, statutory provisions and legal consequences shall apply.
§ 9 Applicable Law, Place of Performance and Jurisdiction, Severability Clause, Data Privacy Statement
(1) The Terms of this contract and all contractual relationships between us and our customer shall solely be governed by the laws of the Federal Republic of Germany, excluding application of the provisions of international private law and international uniform law, in particular, that of the UN CISG.
(2) The place of performance for all deliveries and services, where permitted by law, is the registered office of Spilker. The sole place of jurisdiction (including international place of jurisdiction) for all disputes arising from or in connection with these Terms and contracts concluded with the customer, where permitted by law, is the registered office of Spilker. However, we shall also be entitled to file claims at our customer’s place of general jurisdiction and at the place of performance for the delivery obligation.
(3) Should one or several provisions of this agreement be or become partly or completely ineffective or unenforceable, this shall not affect the effectiveness of any other provision. The ineffective or unenforceable provision shall be replaced with retroactive effect by an effective and enforceable provision that most closely reflects the economic and legal purpose of what the parties intended or would have intended in accordance with the spirit and purpose of this contract, if they had considered this point at the time of conclusion of contract. The same applies, if the contract contains an omission. If the invalidity of a provision affects a specific scope of service or time (deadline or date), where legally permissible, the provision with a value which most closely reflects the original value shall be deemed agreed. Section 139 BGB (German Civil Code) is hereby waived in accordance with the express intent of the parties concerned.
(4) The customer hereby acknowledges that we store data from the contractual relationship in accordance with Section 28 of the German Federal Data Protection Act for data processing purposes and reserve the right to disclose this data to third parties (e.g. insurance companies), provided this is necessary for fulfilment of contract.
As amended: October 2017