1.1 The following Standard Terms and Conditions (hereinafter referred to as "Terms and Conditions") apply to all business relationships of ProAmpac Flexibles GmbH (hereinafter also referred to as "ProAmpac") with its customers. These Terms and Conditions apply only if the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), a public corporation or a special fund under public law.
1.2 They apply as a framework agreement in the version valid at the time that the customer places an order or, in any case, in the most recent version provided to the customer in writing or electronically. They also apply as a framework agreement to future contracts without it being necessary for ProAmpac to make reference to them again in each individual case.
1.3 Our Terms and Conditions apply to the exclusion of any others. Any provisions in the customer’s standard terms and conditions which conflict with, vary from or add to these Terms and Conditions will only become an integral part of the contract if and to the extent that ProAmpac has expressly consented to their application. This requirement of consent will also apply if ProAmpac makes deliveries to the customer without reservation despite being aware of the customer's standard terms and conditions.
1.4 Any individual agreements (including ancillary agreements, supplementary agreements and amendments) entered into with the customer will take precedence over these Terms and Conditions. Subject to any evidence to the contrary, a written contract or our written confirmation will be necessary to evidence the content of such agreements.
1.5 No employees of ProAmpac other than its directors and persons empowered to represent the company (Prokuristen) are permitted to orally make individual agreements or promises that diverge from the terms hereof.
2. Quotations and Conclusion of Contract
2.1 All quotations by ProAmpac are subject to change and non-binding unless ProAmpac has in writing expressly designated them as binding.
2.2 Orders for goods placed by the customer are deemed binding offers to enter into a contract. ProAmpac is entitled to accept this offer to conclude a contract within 4 (four) weeks of receipt.
2.3 A contract is concluded when ProAmpac either confirms the order in writing or supplies the goods and/or services.
2.4 ProAmpac is entitled to use the services of a third party to fulfill the contract.
3. Copyright, Reservation of the Right to Amend
3.1 ProAmpac reserves ownership of or copyright in all of the quotations and bids that its provides as well as ownership of or copyright in the images, drawings, samples, models, data and other documents that it makes available to the customer.
3.2 Information that ProAmpac provides on goods and/or work will not constitute an express warranty of specific characteristics (garantierte Beschaffenheitsmerkmale), but serve only to describe or identify the goods and/or work. Unless they interfere with the use of the goods and/or work for the intended purpose under the contract, deviations commonly found in the trade, deviations that are made for the purposes of compliance with provisions of law or which represent technical improvements, and substitution of components by equivalent components will be permissible. The tolerances customary in respect of quantities, dimensions, colors and weights apply.
3.3 ProAmpac is entitled to make changes and improvements to the extent set out in section 3.2; however, it is not under any obligation to make such changes.
3.4 ProAmpac expressly reserves the right to make deliveries that exceed or fall short of the agreed quantity by up to 15% for reasons related to production and packaging.
4. Prices and Terms of Payments
4.1 The prices current at the time of the conclusion of the contract apply and delivery is FCA ProAmpac's factory (FCA in accordance with the ICC Incoterms 2020); value-added tax will be added, if applicable. If the cost factors (in particular, materials, wages, energy, freight, duties, etc.) change between the conclusion of contract and the agreed delivery time, ProAmpac will be entitled to make an appropriate adjustment to the price.
4.2 If the agreed delivery time exceeds a period of 4 (four) months from the conclusion of the contract or where, for reasons for which the customer is responsible, the delivery is delayed for more than 4 (four) months from the conclusion of the contract, ProAmpac will be entitled to charge the price that was valid on the day of delivery.
4.3 Unless ProAmpac has agreed otherwise with the customer, the purchase price is due and payable immediately upon issue of the invoice and delivery or acceptance of the goods. However, ProAmpac will be entitled to, at any time (even where there is an ongoing business relationship), make delivery partly or entirely subject to prepayment. Where this is the case, ProAmpac will inform the customer of this, at the latest, at the time that it confirms the order.
4.4 If the customer fails to pay the purchase price within 30 (thirty) days from the due date and receipt of the invoice or to pay after receipt of an equivalent payment schedule in accordance with the agreed payment terms, it will be in default even without a reminder from ProAmpac.
4.5 If the customer is in default, interest will be payable on the purchase price at the applicable statutory interest rate. We reserve the right to claim further damages due to delay. Where the customer is a merchant (Kaufmann), the right, in transactions between merchants, to demand interest from the due date will remain unaffected (Fälligkeitszins) (§ 353 of the Commercial Code (Handelsgesetzbuch – HGB)).
4.6 The customer may only exercise a set-off right or a right of retention if its claim has been legally determined or is undisputed.
4.7 If it becomes apparent after the conclusion of the contract (e.g. through a request for the opening of insolvency proceedings) that ProAmpac's claim for payment of the purchase price may be at risk due to the customer's lack of ability to pay, ProAmpac will be entitled to rescind the contract in accordance with the statutory provisions, if necessary after setting the customer a deadline for payment. In the case of contracts for non-fungible goods (custom-made products), ProAmpac may rescind the contract immediately; the statutory provisions removing the necessity for setting a time limit will remain unaffected.
4.8 Where the parties have agreed on partial payment, the entire outstanding balance will become due for immediate payment if the customer defaults in whole or in part on 2 (two) installments.
5. Time of Performance, Partial Deliveries, Delay in Delivery and Force Majeure
5.1 Delivery dates, production dates and deadlines that have not been expressly agreed as binding constitute non-binding information. If, after placing an order, the customer makes requests for changes or additions, this may extend delivery times.
5.2 ProAmpac is entitled to deliver goods or work in installments at any time provided that it is reasonable to expect the customer to accept this.
5.3 The statutory provisions will apply to determine whether ProAmpac is in default. In any case, ProAmpac will not be in default unless the customer has first sent a reminder notice.
5.4 If ProAmpac is in default of delivery, the customer may demand damages for delay pursuant to section 8 of these Terms and Conditions.
5.5 Where unforeseeable and unavoidable events occur, which are beyond ProAmpac's control ("force majeure"), such as war, natural disasters, strikes, lockouts, epidemics, governmental measures or similar events, ProAmpac will, for the duration of such events plus a reasonable start-up period thereafter, be released from its duty to deliver or perform. Agreed deadlines will be extended by the duration of the disruption plus a reasonable start-up period thereafter; ProAmpac will provide the customer with notice of the disruption in an appropriate manner. If the duration of the disruption is not foreseeable or if it lasts longer than two months, either party may rescind the contract.
5.6 The aforegoing does not affect the customer's rights pursuant to section 8 of these Terms and Conditions or ProAmpac's statutory rights that arise as a result of performance becoming impossible or unreasonable and/or a cure of defective performance becoming impossible or unreasonable.
6. Passing of Risk – Shipping/Packaging
6.1 Deliveries are FCA pursuant to the agreed delivery conditions at ProAmpac's facility (FCA according to the ICC Incoterms 2020; its provisions on the passing of risk apply). ProAmpac's facility is also the place of performance for delivery and for any cure of defective performance that is necessary.
6.2 Upon request from and at the expense of the customer, ProAmpac will ship the goods to another destination (sale by delivery to a place other than to the place of performance - Versendungskauf). The goods will be loaded and shipped without insurance and at the customer's risk. ProAmpac will endeavor to take into account the customer's wishes and interests as regards the shipping method and route; the customer will be responsible for any additional costs incurred as a result of this, including where the parties have agreed on freight-prepaid delivery.
6.3 The risk of accidental loss or deterioration of the goods will pass to the customer, at the latest, when the goods are handed over to it. However, in the case of a sale by delivery to a place other than to the place of performance (Versendungskauf), the risk of loss or damage and the risk of delay will pass to the customer at the time that the goods are handed over to the carrier or freight forwarder or other person appointed to handle the shipping. Where an acceptance procedure has been agreed, the risk passes upon acceptance. In all other respects, the statutory provisions governing works contracts will also apply accordingly to an agreed acceptance.
6.4 If the customer does not accept the goods or fails to cooperate or if delivery is delayed for other reasons for which the customer is responsible, ProAmpac will store the goods at the expense and risk of the customer.
7.1 Unless agreed otherwise below, the customer is entitled to the statutory warranties for any defects in quality or title of the goods.
7.2 Where the parties have agreed that goods will have certain qualities or characteristics (Vereinbarte Beschaffenheit), this will be the basis for ProAmpac's liability for defects.
7.3 Where the parties have not agreed that the goods will have certain qualities or characteristics, liability for defects will be governed by the statutory provisions (§ 434 (1) sent. 2 and 3 of the German Civil Code) .
7.4 ProAmpac is not liable for defects that the customer knew of or was grossly negligent in not knowing of at the time that the parties concluded the contract (§ 442 of the German Civil Code).
7.5 In addition, unless the customer has satisfied its duty to examine the goods and report any defects (§ 377 of the German Commercial Code), it may not exercise its warranty rights in respect of defective goods. If the customer fails to properly examine the goods and/or give notice of any defects, ProAmpac will not be liable pursuant to the statutory provisions.
7.6 If the goods delivered are defective, ProAmpac may elect to cure its performance through repairing the defect (repair) or delivering an item free from defects (replacement). The aforegoing does not affect ProAmpac's right to refuse to cure defective performance where the legal requirements for this have been met.
7.7 To enable ProAmpac to cure its defective performance, the customer must allow it the necessary time and opportunity and must hand over the defective goods for testing purposes. Where ProAmpac delivers replacement goods, the customer must return the defective goods in accordance with the statutory provisions.
7.8 If the situation is such that the customer must take action urgently (e.g. if its operational safety is at risk or to prevent damage that would be disproportionately larger), the customer will be entitled to repair the defect itself or to have it repaired by a third party. However, in such a case, it must notify ProAmpac without delay, if possible, in advance. In cases where the statutory provisions would have allowed ProAmpac to refuse to cure its defective performance, the customer is not entitled to exercise the right of self-remedy.
7.9 If a defect actually exists, ProAmpac will reimburse the customer in accordance with the statutory provisions for the customer's necessary expenses with regard to testing and curing the defect, in particular its costs for transport, travel, labor and materials. Otherwise, ProAmpac will be entitled to demand reimbursement from the customer of the costs incurred as a result of its unjustified demand for a cure (in particular testing and transport costs) unless the customer could not have known that there was no defect.
7.10 Where ProAmpac fails in its attempts to cure defective performance or if the customer sets ProAmpac a reasonable deadline for effecting a cure, but this expires without a cure or if the law allows the setting of a deadline to be dispensed with, the customer may rescind the contract or reduce the purchase price in accordance with the statutory provisions. If the goods have just minor defects, the customer will only be entitled to demand a reduction of the purchase price.
7.11 ProAmpac's statutory warranties do not apply to any defects that first occur after the transfer of risk. Accordingly, liability on the part of ProAmpac is excluded in the following cases: the item delivered is damaged by the customer's unsuitable or improper use of it; the customer or a third party incorrectly assembles or commissions the item; ordinary wear and tear; it is incorrectly or negligently handled by the customer; it is not proper maintained; unsuitable operating materials are used.
7.12 In the case of defects, damages and reimbursement for wasted expenses are only available to the customer pursuant to 8 of these Terms and Conditions and are otherwise excluded.
7.13 Intellectual Property Rights
In the event that the item delivered infringes the industrial property rights or copyright of a third party, ProAmpac will, at its discretion and expense, modify or exchange the item delivered so that it no longer infringes third-party rights or will obtain the right to use the item for the customer. If it is not possible to do this within a reasonable period of time, the customer will be entitled to rescind the contract or reduce the purchase price.
7.14 Each of the parties to the contract will, without delay, notify the other party should any claims be brought against it for the infringement of industrial property rights or copyright.
7.15 Claims by the customer for damages are subject to the restrictions in section 8 of these Terms and Conditions and are otherwise excluded.
8.1 Unless provided otherwise in these Terms and Conditions, ProAmpac's liability for any breach of contractual or non-contractual obligations will be governed by the statutory provisions.
8.2 ProAmpac will be liable for damages in the event of willful misconduct or gross negligence.
8.3 In the event of simple negligence, ProAmpac will be liable only
8.4 The limitations on liability in section 8.3 also apply to breaches of obligation by persons for whose intentional wrongdoing or negligence ProAmpac is liable under the statutory provisions.
8.5 The limitations on liability in section 8.3 do not apply if ProAmpac has fraudulently concealed a defect, guaranteed that the goods have certain characteristics/qualities (Beschaffenheitsgarantie) or in the case of claims by the customer pursuant to the Product Liability Act (Produkthaftungsgesetz).
9. Limitation Period
9.1 The general period of limitation for claims arising from defects in quality or title is 12 (twelve) months from the date of delivery. If an acceptance procedure has been agreed, the limitation period begins upon acceptance.
9.2 If the goods are a structure or an item that has been used for a structure in keeping with its usual use and such item has caused the structure to be defective, the period of limitation will, in accordance with the statutory provision, be 5 (five) years from delivery.
9.3 The above-mentioned limitation periods also apply to contractual and non-contractual damages claims by the customer, which are based on the existence of defects in the goods, unless the application of the ordinary statutory limitation periods (§ 195 and § 199 of the German Civil Code) would lead to a shorter limitation period in an individual case.
9.4 Any damages claims by the customer for intentional wrongdoing or gross negligence, for damage from injury to life or limb or health or pursuant to the Product Liability Act will, however, become time barred solely in accordance with the limitation periods prescribed by law.
10. Reservation of Title (ROT)
10.1 ProAmpac will retain ownership of the goods delivered (hereinafter referred to as “ROT goods") until all claims arising from the parties' business relationship have been satisfied in full. The same applies where goods are processed, which is deemed to always occur on behalf of ProAmpac as manufacturer (§ 950 of the German Civil Code). If the goods are processed, combined or commingled with other goods, ProAmpac will acquire co-ownership of the new goods in the ratio of the invoice value of its goods to the other goods at the time of processing, combining or commingling.
10.2 The customer may only sell the ROT goods in the ordinary course of business and only if it is not in default of payment. The customer is not permitted to otherwise dispose of the ROT goods, in particular it is not permitted to pledge them or create security interests over them. The customer hereby assigns to ProAmpac the purchase price or remuneration for work that is payable due to its resale of the ROT goods. Such assignment is in the amount of the respective invoice and is valid until all of ProAmpac's claims against it have been settled. ProAmpac revocably authorizes the customer to collect such claims.
10.3 Where the customer is in breach of contract, in particular where it is in default of payment, ProAmpac will be entitled by law to rescind the contract and/or to demand the return of the ROT goods. The customer will be obliged to surrender the goods. The customer will be responsible for the costs of repossessing and then selling the goods.
10.4 The customer will notify ProAmpac of any attempts to seize the goods, in particular in enforcement proceedings, and will also notify it of any other interference with its reservation of title. It will do so in writing and without delay. The customer must compensate ProAmpac for any damage or costs that it incurs as a result of a breach of this obligation and the measures need to block seizure by third parties.
11. Jurisdiction and Choice of Law
11.1 If the customer is a merchant, a public corporation or a special fund under public law, the courts at the place where ProAmpac's registered office is located, namely in Eberdingen, will have exclusive jurisdiction over any disputes, which arise directly or indirectly from the contractual relationship.
11.2 However, ProAmpac will also be entitled, in all cases, to bring an action at the place where the duty to deliver must be performed under these Terms and Conditions or under an individual agreement or before the courts which have general jurisdiction for the customer.
11.3 These Terms and Conditions and the contractual relationship between ProAmpac and the customer are governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the U.N. Convention on the International Sale of Goods.
12. Final Provisions
12.1 The customer is not entitled to assign rights under the contract of sale or the works contract without ProAmpac's consent.
12.2 In the event that any provision of these Terms and Conditions is or becomes invalid or impracticable, this will not affect the validity of the remaining provisions.