General Conditions of Sale

 

§ 1 Scope of application

(1) The present general conditions of sale constitute an integral part of every contract that EPL Deutschland GmbH & Co. KG (hereinafter referred to as “EPL”), being the Seller, concludes with its customers, being the Buyer, the subject-matter of which is the purchase and delivery of their products.

(2) The present general conditions of sale shall apply exclusively. Different, contradictory or complementary general terms and conditions of the Buyer shall become part of the contract only if and to the extent that EPL has expressly accepted their applicability. This requirement of express consent shall apply in any case, even if EPL, being aware of the Buyer’s general terms and conditions, delivers goods to the Buyer without expressly rejecting said terms and conditions.

(3) Individual agreements concluded with the Buyer in individual cases, including any ancillary agreements, supplements and amendments, shall prevail over the present general conditions of sale, provided that they are concluded in writing.

§ 2 Contract conclusion

(1) The offers of EPL are subject to change and non-binding, unless they are expressly marked as binding.

(2) An order of the goods by the Buyer is deemed to be a binding offer to enter into a contract within the meaning of Section 145 BGB [German Civil Code]. Unless otherwise provided for in the order, EPL has the right to accept this offer to enter into a contract within two weeks of receipt of said offer.

(3) The offer is accepted by way of an order confirmation by EPL. Only order confirmations issued in writing shall be binding for EPL. Oral agreements and agreements concluded by phone require a written confirmation by EPL to be binding.

§ 3 Documents

(1) Any print, specification and other design documents submitted to the Buyer by EPL shall be reviewed by the Buyer, also regarding all the properties required for use of the manufactured product, without undue delay.

(2) If the Buyer agrees with the documents, they shall expressly state their agreement and approve them.

(3) If the Buyer requires changes to the documents provided, they shall clearly mark such changes.

(4) Any disclosure of the documents to third parties requires EPL’s express prior consent.

§ 4 Scope of service

(1) The scope of service results from EPL’s order confirmation and from the specifications as approved by the Buyer.

(2) Specifications of dimensions and weights of the goods to be delivered and any drawings and figures thereof shall be deemed to be approximate only, unless exact compliance with such specifications is required for usability in accordance with the contractually intended purpose. They do not constitute guaranteed properties, but descriptions or characteristics of the goods.

(3) Customary deviations and deviations that are necessary due to legal provisions or that constitute a technical improvement are admissible, provided that they do not affect the usability in accordance with the contractually intended purpose.

(4) EPL shall be entitled to deviate from the total scope of supply by up to 10% maximum due to production conditions.

(5) EPL may charge the Buyer the reasonable costs of any drawings, figures, calculations, models, and other documents provided by EPL, and for any tools and supplies required for production, in particular plates and embossing cylinders, unless they have already been itemized in the quote. However, they shall not be included in the scope of service. In any case, EPL retains the respective title and copyrights.

(6) EPL shall be entitled to provide partial deliveries, provided that there is no conflicting interest of the Buyer.

§ 5 Delivery

(1) Goods are delivered ex works, which is also the place of performance for the delivery and any supplementary performance. Upon request of the Buyer, the goods will be shipped to a different destination (mail order purchase) at the Buyer’s expense. Unless otherwise agreed, EPL shall be entitled to determine the mode of shipment (in particular the carrier, transport route, and packaging) at their own discretion, using due care and diligence.

(2) Transport and any other packaging will not be taken back, with the exception of reusable packaging. Loaned packaging shall be returned to EPL within one month.

(3) The risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer at the moment of delivery of the goods at the latest. In the case of mail order purchase, however, the risk of accidental loss or accidental deterioration of the goods and the risk of delay shall pass to the Buyer already upon delivery of the goods to the carrier, forwarder, or other person or agency assigned to execute the shipment.

(4) Any delivery periods and dates specified by EPL shall be approximate only, unless a fixed period or a fixed date has expressly been confirmed or agreed. If the goods have been agreed to be shipped, the delivery periods and dates shall refer to the moment of transfer of the goods to the carrier, forwarder, or other third party assigned with the transport.

(5) In order for the delivery periods specified by EPL to commence, and the delivery dates specified by EPL to apply, all the duties and obligations of the Buyer, in particular the approval for printing and the approval of the technical specifications, have to be properly fulfilled in due time.

(6) In the case of mail order purchase, EPL will take out transport insurance for the goods to be delivered upon the Buyer’s express request. Any costs incurred in this respect shall be borne by the Buyer.

§ 6 Buyer’s purchase obligation

(1) The Buyer shall be obligated to accept the goods in their entirety immediately, unless delivery in several shipments has been agreed. In the case of delivery in several shipments, the Buyer shall be obligated to call and accept the agreed partial delivery within the agreed period of time.

(2) If the Buyer is in default of acceptance or fails to cooperate, or if the delivery of EPL is delayed for other reasons imputable to the Buyer, EPL shall be entitled to demand indemnification for any damage resulting therefrom, including additional expenses (e.g. storage costs). For this purpose, EPL will charge a blanket indemnity in an amount of EUR 0.20 per EUR-pallet and calendar day, starting as of the start of the period of delivery or, if there is no period of delivery, as of the notification of readiness for dispatch of the goods. EPL’s right to prove additional damage and any statutory claims of EPL (in particular reimbursement of additional expenses, appropriate indemnity, termination) remain unaffected; however, the blanket amount shall be offset against such additional monetary claims. The Buyer shall have the right to prove that EPL did not suffer any damage or that the damage was significantly lower than the above-mentioned blanket amount.

(3) In the case of a default of acceptance on the part of the Buyer, EPL shall furthermore be entitled to rescind the contract, in compliance with the relevant statutory requirements. After such rescission, EPL shall be entitled to liquidate the goods; the obligation to protect the Buyer’s intellectual property remains unaffected. In any case, EPL shall not be obligated to liquidate if such liquidation, taking the associated expense into account, is not expected to yield an economic profit. Furthermore, EPL is entitled to damages and reimbursement of expenses pursuant to the relevant statutory provisions. Within the framework of the payment of damages, EPL shall be placed in the same position it would have been in had the contract been properly executed; consequently, the Buyer shall pay the agreed remuneration less any expenses saved. Reimbursable expenses also include costs of disposal.

(4) In the case of a default of acceptance, the risk of accidental loss or accidental deterioration of the goods shall also pass to the Buyer as of the moment the latter is in default of acceptance.

§ 7 Prices and terms of payment

(1) Prices are quoted in EUR, ex works, net of packaging, statutory value-added tax, withholding tax, customs duties in the case of export, and other fees and public charges.

(2) If the customer requires significant changes to the specifications and print data of the product after the conclusion of the contract, EPL shall be entitled to adjust the price in accordance with the additional material, production and labour costs.

(3) The purchase price is due and payable within 30 days of receipt of the invoice and shall be paid to EPL without deduction.

(4) EPL is entitled, at their own discretion, and even within the framework of an ongoing business relationship, to execute all or part of a delivery only against payment in advance or provision of collateral at any time. This applies in particular if the Buyer is already in default with respect to obligations vis-à-vis EPL. If the Buyer fails to comply with such request, EPL shall have the right, subject to additional statutory rights, to rescind the contract.

(5) The date of receipt of payment by EPL is deemed to be the date of payment.

(6) Payment shall be made cashless to a bank account specified by EPL. The costs of the payment transaction shall be borne by the Buyer. Payment by cheque or bill of exchange is excluded.

(7) Upon expiry of the payment term according to clause 3 above, the Buyer is in default of payment. During such default, interest in the amount of the currently applicable statutory default interest rate in the amount of nine percent above the base interest rate shall be paid on the purchase price. EPL reserves the right to claim additional damages for default. Vis-à-vis businessmen, the claim for commercial default interest pursuant to Section 353 HGB [German Commercial Code] remains unaffected.

(8) The Buyer shall be entitled to offset claims only if and to the extent that their counter-claims are undisputed, have been legally established, or have been accepted by EPL. The Buyer shall be entitled to claim rights of retention only if and to the extent that their counter-claims are undisputed, have been legally established, or have been accepted by EPL, and that such counter-claims arise from the same contractual relationship.

§ 8 Retention of title

(1) EPL retains the title to the sold goods until all current and future claims arising from the contract of sale and the ongoing business relationship with the Buyer have been paid in full.

(2) The Buyer shall handle the goods with care.

(3) If the purchase price has not yet been paid in full, the Buyer shall notify EPL in writing without undue delay if the goods are encumbered with third-party rights or otherwise subject to intervention by third parties.

(4)The Buyer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. However, in this case, the Buyer hereby assigns all claims arising from such resale to EPL, irrespective of whether such resale takes place before or after processing, if any, of the goods delivered subject to retention of title. Notwithstanding EPL’s right to collect the claim themselves, the Buyer shall remain authorised to collect the claim even after such assignment. In this context, EPL undertakes not to collect the claim as long and to the extent that the Buyer fulfils their payment obligations, no insolvency or similar proceedings have been opened or filed, and payments have not been suspended.

(5) If the above-mentioned collaterals exceed the claims to be secured by more than 10%, EPL is obligated to release collaterals of their choice at the Buyer’s request.

§ 9 Intellectual property

(1) If the Buyer provides samples, drawings, and print data to EPL, the Buyer shall ensure that they do not infringe any third-party rights, in particular intellectual property rights.

(2) The Buyer shall indemnify EPL for any claims raised against EPL due to an infringement of third-party rights caused by the use of the samples, drawings, and print data provided by the Buyer.

§ 10 Warranty

(1) In order for any warranty rights of the Buyer to apply, all obligations to inspect the goods and report defects owed pursuant to Section 377 HGB have to be duly and properly fulfilled by the Buyer. The goods delivered shall be thoroughly inspected immediately upon receipt. The goods are deemed to be approved by the Buyer with respect to obvious defects or other defects that would have been recognisable in an immediate, thorough inspection unless EPL receives a written notice of defects within seven workdays of delivery.

(2) With respect to other defects, the goods delivered are deemed to be approved by the Buyer unless EPL receives a notice of defects within seven workdays of the time at which the defect became apparent; however, if the defect would have been obvious at an earlier point of time with normal use, this earlier time shall be relevant as starting date of the period for the notice of defects.

(3) Workdays within the meaning of the above clauses are the days from Monday to Saturday.

(4) Goods for which no notice of defects has been submitted in due form and time are deemed to be approved and accepted.

(5) Slight deviations in the quality (e.g. slight deviations in colour) do not give rise to claims for defects. Tolerances that are due to technical reasons or customary do not constitute defects. Please note that the durability of plastics, paints and varnishes, and possibly other parts used by EPL in the production of their products may be limited and depends on proper storage.

§ 11 Liability

(1) With respect to fault-based liability, EPL shall be liable to pay damages, irrespective of the legal grounds, only in case of willful behavior or gross negligence. In the case of slight negligence, and subject to statutory limitations of liability (e.g. due care with own affairs; insignificant breach of duty), EPL shall only be held liable for

1. a) damage due to loss of life, physical injury or damage of health,
2. b) for damage due to a breach of a material contractual obligation (i.e. an obligation the fulfilment of which is vital to the proper execution of the contract and on the compliance with which the contractual partner relies and can rely); however, in this case our liability is limited to the compensation of the foreseeable, typical damage.

(2) The limitations of liability according to clause 1 above also apply for breaches of duty on the part or on behalf of persons whose faults are imputable to EPL pursuant to statutory provisions. They do not apply if and to the extent that EPL has maliciously concealed a defect or guaranteed the quality of the goods, and for claims of the Buyer under product liability law.

(3) EPL cannot be held liable if delivery is impossible or delayed due to events of force majeure or other incidents that were unforeseeable at the time of conclusion of the contract (e.g. disruptions of operations of any kind, difficulties with the procurement of materials or energy, transport delays, strikes, legal lockouts, lack of workforce, energy or resources, or non-delivery, incorrect or delayed delivery by suppliers) and that are not imputable to EPL.

(4) Any other liability is excluded.

§ 12 Exclusion of liability for use

(1) The Buyer is solely responsible for proper filling, welding, and storage of the delivered goods.

(2) EPL does not warrant, and excludes any liability, for the suitability of the delivered goods for the use intended by the Buyer. This applies in particular for the compatibility of the filling material with the products of EPL.

§ 13 Statute of limitations

(1) In deviation of Section 438(1) no. 3 BGB, the general limitation period for claims arising from material defects or defects of title is one year from the transfer of risk.

(2) The above limitation periods under sales law shall also apply for contractual and extra-contractual claims for damages of the Buyer arising from a defect in the goods, unless application of the regular statutory statute of limitations (Sections 195, 199 BGB) would result in a shorter limitation period in the individual case.

(3) Claims for damages of the Buyer pursuant to the Product Liability Act, however, shall become time-barred exclusively in accordance with the statutory limitation periods.

§ 14 Applicable law and place of jurisdiction

(1) The present conditions of sale and the contractual relationship between EPL and the Buyer are subject to the law of the Federal Republic of Germany; application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

(2) The place of jurisdiction for any and all disputes directly or indirectly arising from the present contractual relationship is Dresden, Germany. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this provision.

(3) Notwithstanding the above clause 2, EPL may, at their discretion, also file a claim against the Buyer at the latter’s general place of jurisdiction.

§ 15 Language

In the event of contradictions between the German and the English version of these conditions of sale the German version shall prevail.