1.1 Offers made by ProAmpac Flexibles AG, whether in writing or verbally, are subject to change. The contract between ProAmpac Flexibles AG (seller) and its customer (buyer) is concluded as soon as the buyer has received the seller's written confirmation that it accepts the buyer's order (order confirmation).
1.2 These General Terms and Conditions of Sale and Delivery (GTC) are a binding part of the contract between the seller and the buyer. Other terms and conditions of the buyer or a third party shall only apply if they have been expressly accepted by the seller in writing.
1.3 All agreements, such as deviations from these GTC and legally relevant declarations by the parties, must be in writing in order to be valid.
2. Determination of Deliveries and Services
2.1 The deliveries and services of the seller are set out in the seller's order confirmation and any enclosures thereto.
2.2 For manufacturing reasons and due to the use of different raw materials, the following excess or short deliveries are expressly reserved:
|Bag||up to||5'000 pieces:||75%||Roll material||up to||2'500 m2:||50%|
|up to||20'000 pieces:||50%||up to||15'000 m2:||25%|
|over||20'000 pieces:||20%||up to||100'000 m2:||15%|
2.3 The seller shall have the right to make partial deliveries and provide partial services.
2.4 Designs, originals, clichés, tools, embossing and printing rollers as well as samples shall remain the property of the seller and may not be used by the buyer for any other purpose without the express permission of the seller. The seller reserves the right to destroy -designs, originals, clichés, tools, embossing and printing rollers as well as samples without consulting the buyer if they are no longer required for the buyer's orders for a period of 18 months. Thereafter, they must be recreated at the buyer's expense if required.
2.5 Printing material supplied by the buyer shall be returned to the buyer after the printing forms have been produced. The production of copies of such printing documents shall be invoiced to the buyer.
3. Delivery Period
3.1 The delivery period shall commence as soon as the contract has been concluded in accordance with section 1.1 and any agreed payments and securities have been made. The delivery period shall be deemed to have been met if the goods to be delivered or the notification of readiness for dispatch have been dispatched by the expiry of the delivery period.
3.2 The delivery period shall be extended appropriately:
In such cases, the buyer may neither declare withdrawal from the contract nor claim damages.
3.3 If the seller does not deliver within the agreed and possibly extended delivery period, the buyer must - before he can assert any remedies and rights against the seller - grant the seller a reasonable period of grace by registered letter. Until the expiry of the period of grace, the buyer shall not be entitled to compensation for any damage he may have incurred due to the delayed delivery, nor shall the buyer be entitled to withdraw from the contract.
4. Deliveries and Services on Call
4.1 Goods which the seller delivers to the buyer on the buyer's request must in any case be accepted in full by the buyer within a maximum of three months of the first delivery. After expiry of the aforementioned period of three months, the goods not yet purchased shall be delivered to the buyer without being requested and invoiced.
4.2 The interest and storage costs incurred by the seller for deliveries and services on call shall be borne by the buyer.
4.3 We expressly reserve the right to adjust prices in accordance with clause 5.2 in the case of deliveries and services on call. The last delivery shall be decisive in this respect.
5. Prices and Terms of Payment
5.1 All prices are net ex works of the seller and - subject to clause 5.4 - in Swiss francs. The quantities actually delivered (see clause 2.2) shall be invoiced. Not included in the prices and to be paid additionally by the buyer are: Taxes and duties of all kinds (such as any value added tax and customs duties); packaging (insofar as not included in accordance with clause 6.1); transport; any insurance; designs, originals, clichés, tools, embossing and printing rollers as well as extensive sample work.
5.2 If, between the conclusion of the contract and the delivery, the costs on which the seller's calculation is based (such as, in particular, the wage rates and costs for raw materials) increase, the seller shall be entitled to adjust the prices stated in the order confirmation accordingly until invoicing.
5.3 The buyer shall pay the seller's invoices within 30 days of the invoice date. Payments are to be made net, without deduction of discounts, expenses, taxes and fees of any kind. If the buyer does not pay by the due date, he shall owe interest on arrears from this date without further ado.
5.4 If the parties agree on prices in a currency other than Swiss francs, the seller shall be entitled to adjust the prices on the basis of the current exchange rates until the invoice is issued.
5.5. In the event of a full or partial cancellation of an order, the buyer shall be responsible for all costs incurred up to the date of cancellation. This includes all expended and committed costs for raw materials, work in process, finished goods, labor, materials, administrative costs, outside services or consultants, and any other costs associated with fulfilling an order plus the applicable profit margin.
6. Packaging, Transport, Insurance and Retention of title
6.1 The seller shall deliver the goods in the packaging normally used by it, unless expressly provided otherwise in the order confirmation. It is the buyer's responsibility to check whether the packaging normally used by the seller is suitable for its purposes before concluding the contract.
Covers, folding boxes and disposable packaging are included in the prices. Special boxes, pallets, cover boards etc. will be charged to the buyer at cost price unless they are returned or exchanged on delivery.
6.2 The goods shall be shipped ex works of the seller. Benefit and risk shall pass to the buyer upon departure of the delivery ex works. Transport is at the risk of the buyer. Complaints in connection with the transport must be addressed to the transport company or the carrier upon receipt of a delivery. The seller is not liable for damage caused by transport.
6.3 The buyer is responsible for insuring the goods against damage of any kind and against loss.
6.4 The seller remains the owner of all the goods delivered until it has received payment in full in accordance with the contract. The buyer is obliged to take the necessary measures to protect the seller's property. Upon conclusion of the contract, the buyer authorizes the seller, at the buyer's expense, to enter or note the reservation of title in public registers, books or the like in accordance with the relevant national laws. The buyer shall cooperate to the extent necessary.
7. Material Supplied by the Buyer
The buyer shall deliver materials intended for processing to the seller's premises free of charge at his own expense. The seller declines any liability beyond the ordinary storage of material or goods. The buyer shall be liable for any damage resulting from defective material delivered by him.
8.1 Goods which, compared to the description in the order confirmation, show only minor deviations customary in the industry, technically unavoidable register differences or minor color deviations in printing shall not be deemed to be defective. The buyer shall store the goods properly, otherwise he shall forfeit any claim under warranty.
8.2 The buyer must inspect the delivered goods (including partial deliveries) immediately upon receipt and notify the seller in writing of any defects within seven days of receipt of the goods. However, making a complaint does not release the buyer from his obligation to pay.
8.3 Claims due to defective goods must in any case be asserted by the buyer against the seller in writing within six months after receipt of the goods (warranty period). The limitation period shall expire six months after the expiry of the warranty period.
8.4 If the seller delivers defective goods and if the other conditions according to this clause 8 are fulfilled, the seller shall - at its option - replace the defective goods within a reasonable period of time, repair them or grant a price reduction. The buyer shall not be entitled to other remedies, in particular rescission.
8.5 The buyer shall allow the seller, at its request, to inspect allegedly defective goods on site during the warranty period. The buyer may not return delivered goods to the seller without the seller's express written consent.
8.6. The buyer is solely responsible for the storage of the goods in a storage environment suitable for flexible plastic packaging films in ambient storage. These storage temperatures should not exceed 35°C and humidity should not exceed 60%. Excessive or prolonged exposure to heat and/or humidity may result in performance or quality problems with the Goods. The seller is not responsible for any damage to the Goods or quality or performance problems resulting from improper storage.
9 Liability and Force Majeure
9.1 Subject to the following paragraph and clause 8, any liability of the seller, in particular for consequential damages, is excluded. In particular, any recourse of the buyer or a third party against the seller is excluded, should the buyer or the third party be held liable in connection with defective goods of the seller - for example due to product liability.
The above limitation of liability shall not apply in the event of intent or gross negligence. However, it shall apply in the event of intent or gross negligence on the part of auxiliary persons.
9.2 In the event of force majeure, the seller shall be entitled to withdraw from the contract in whole or in part without the buyer being entitled to compensation or withdrawal from the contract as a result. Force majeure shall include in particular: epidemics, mobilization, war, riots, significant operational disruptions, accidents, labor disputes, delayed or defective delivery of the required raw materials, semi-finished or finished products, official measures or omissions, natural events such as fire.
9.3. The buyer shall be liable to the seller for all damage caused by him to the seller (including legal costs), unless the buyer proves that he is not at fault. The buyer further warrants to the seller that the customized goods ordered on the basis of samples, models or specifications of the buyer do not infringe any third party rights and do not violate any applicable law. The buyer shall be liable to the seller for any damage (including legal costs) incurred by the seller as a result of the breach of this warranty.
10 Applicable Law and Place of Jurisdiction
10.1 The agreement, including these GTC, and all disputes arising out of or in connection with it shall be governed in all respects by Swiss substantive law. The United Nations Convention on Contracts for the International Sale of Goods ("Vienna Sales Convention") shall not apply.
10.2 All disputes arising out of or in connection with the contract (including these GTC), including disputes concerning its valid formation, validity, amendment or termination, shall be subject to the jurisdiction of the competent courts of the place where the seller has its registered office. The seller shall, however, also be entitled to bring an action against the buyer at the buyer's domicile or at the place of a branch office.