State: August 2018
All present and future goods and services to our contracting parties (hereinafter referred to as "Buyer") shall be made exclusively on the basis of these General Terms and Conditions, unless otherwise expressly agreed in individual cases as a whole or for individual provisions. In addition, the latest version of the INCOTERMS of the International Chamber of Commerce in Paris as amended shall apply to cross-border traffic. Any general terms and conditions of the Buyer shall not be accepted by us at all, even if we do not expressly object to them. Deviations, amendments and/or supplements to agreements between us and the Buyer, including these Terms and Conditions, must be made in writing. This written form requirement can only be waived in writing. Our General Terms and Conditions of Sale as well as the contracts concluded on the basis of these Terms and Conditions shall be subject to German law as applicable to German nationals. If any of the following provisions should be invalid in relation to contracting parties who are not entrepreneurs, legal entities under public law or special funds under public law, this shall not affect their validity in relation to commercial buyers within the meaning of Section 310 (1) German Civil Code (BGB).
All offers are subject to confirmation. Technical data, illustrations of the delivery item in offers, brochures or other information documents do not constitute a guarantee or warranted characteristics. All contracts concerning our goods and services require our written confirmation or confirmation by fax in order to be legally effective. Unilateral legally binding declarations concerning the contractual relationship, in particular notices of termination, must be made in writing to be effective; the written declaration can also be sent by fax. We reserve the right to make changes, in particular improvements to the goods ordered, if these are necessary due to official requirements and/or for reasons of consumer protection or for rationalising production processes, provided that the changes are reasonable for the Buyer. We reserve all rights to quotations, cost estimates, samples, illustrations, descriptions, models, calculations and other documents provided by us or third parties and made available to the Buyer.
Should we declare our agreement with the Buyer's withdrawal from a concluded transaction, the Buyer shall be obliged to reimburse us for the expenses we have incurred for its order. If we accept changes to an order, the Buyer shall bear the additional costs incurred as a result. Our printing prices are based on the number of colours and the size of the order Additional costs for all additional work, in particular for drafts, print layout changes and printing forms (printing blocks, engraved printing cylinders, etc.) shall be borne by the Buyer. The printing prices are valid for a print run ordered at once and produced in one operation.
The masters submitted by us or copies thereof, which have been confirmed by the Buyer as ready for printing, are decisive for the printing process with regard to text and printing status. Minor colour deviations from the original are permissible in all printing processes. A colour deviation is minor if the contractual purpose, in particular the use in business with customers, is not impaired.
We shall only be liable for printing documents provided to us, such as drafts, printing blocks, etc., to the amount of the costs which would be incurred if we were to procure commercially available designs. A retention period of 3 (three) years applies to all printing documents. Printing documents shall remain our property even in the event of payment of pro rata printing preparation costs. Section 312 e (1) sentence 1 nos. 1 to 3 and sentence 2 German Civil Code (BGB) shall not apply to business transactions within the framework of electronic business transactions, unless the Buyer is a consumer within the meaning of the BGB.
Our prices apply only to the agreed service and scope of supply. Additional and special services shall be charged separately. The price for sausage casings is calculated in metres or pieces. In the case of contracts with an agreed delivery period of over 4 (four) months, we reserve the right to increase prices in accordance with any incurred increase in costs, in particular due to collective agreements or increases in material costs.
Our invoices shall be settled by payment to one of our business accounts within the agreed term of payment. Payment shall always be made in the currency specified in the invoice Payments shall be deemed to have been made on the day on which we are able to dispose of the amount. Payments shall be set off against the oldest debt in each case. Prepayments and payments on account are not subject to interest. Cheques and bills of exchange shall only be accepted on account of payment and subject to the reservations customary in commercial transactions.
The Buyer shall be deemed to be in default of payment no later than 30 (thirty) days after the due date. An earlier occurrence of default may be justified by a reminder. In the event of default of payment, the Buyer shall be obliged to pay default interest at the statutory rate above the base interest rate or the interest customary in the country of the Buyer from the start of the default. If we can prove a higher damage caused by default, we shall be entitled to assert this. If the Buyer is in default of payment, we shall not be obliged to make further deliveries to the Buyer during the period of the default.
The Buyer may only assert a right of retention or offset our payment claims against such claims, which are undisputed or have been legally established. However, the Buyer shall always be entitled to withhold payments due to counterclaims based on the same contractual relationship. In the event of the deterioration of its financial circumstances, suspension of payments by it, over-indebtedness, application for or opening of insolvency proceedings against its assets or dishonouring of cheques or bills of exchange of the Buyer, all outstanding or deferred claims shall become due for payment immediately. In such cases we shall be entitled to demand advance payments or the provision of security or, if the Buyer finally refuses to fulfil the contract or to provide security upon request, to withdraw from the contract or demand compensation for damages due to non-performance.
Delivery periods and delivery dates are only binding if they have been expressly agreed as binding with us. An expressly agreed delivery period shall be deemed to have been met if the delivery item is dispatched within the period or, if dispatch is delayed for reasons for which Kalle is not responsible, if we have notified the Buyer that the item is ready for dispatch within the agreed period An agreed delivery period shall be extended appropriately if its non-compliance is due to force majeure, mobilisation, war, riot, strike, lockout, confiscation, embargo, shortage of raw materials or other unforeseen hindrances which cannot reasonably be removed. The same shall apply if such circumstances occur at our suppliers. An agreed delivery period shall also be extended appropriately if an unforeseen machine breakdown occurs for which Kalle is not responsible. If the agreed delivery becomes wholly or partly impossible as a result of force majeure or cannot be carried out for a foreseeable period of more than six months, we shall be entitled to withdraw from the contract. The same shall apply if a supplier fails to deliver due to force majeure. If dispatch or delivery is delayed by the Buyer, we shall be entitled to invoice the Buyer for the additional costs incurred as a result. For technical production reasons, we must reserve the right to increase or decrease quantities by 30 % for orders of up to 500 pieces and by 10 % for quantities above this. For orders up to a goods value of € 290, a surcharge of € 9.95 will be invoiced. Island and express surcharges shall be invoiced separately. We shall be entitled to make partial deliveries to a reasonable extent.
The ordered goods are delivered by us in packaging suitable for dispatch and for the product. If additional means of packaging or transport are desired, the Buyer shall bear the additional costs incurred as a result. Packaging on loan to the Buyer shall be returned to us in accordance with the respective agreements. If the packaging is not returned in due time, we shall be entitled to claim the replacement costs from the Buyer after a further reminder and setting of a deadline. If the packaging is not returned in proper condition, the Buyer shall bear the resulting costs for disposal and replacement.
For all deliveries, also for returns - with the exception of returns due to defective goods - the Buyer bears the risk, even if carriage paid, fao./fca or cif delivery has been agreed. The risk shall pass to the Buyer at the latest upon dispatch of the goods within the meaning of Section 447 German Civil Code (BGB) Increases in freight rates after conclusion of the contract as well as extra costs arising from obstruction or delay of transport due to circumstances for which we are not responsible shall be borne by the Buyer. We shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Buyer and at its expense.
DImmediately after delivery, the Buyer must inspect the goods to determine whether they correspond to the contractually agreed quantity and quality and are suitable for the intended purpose. Recognisable defects/differences in quantity must be reported to us immediately in writing, but no later than within 14 days; unrecognisable defects / differences in quantity must be reported immediately after discovery, at the latest 1 (one) year after delivery of the goods to the Buyer, stating the order data and the invoice and delivery note number as well as a brief description of the defect. If no timely complaint is lodged, claims for defects against us shall be excluded unless we have fraudulently concealed the defect or have assumed a guarantee.
Our liability for defects shall be limited to subsequent performance, i.e. to the right of the Buyer to demand at our expense - and at our option - rectification of the defect or delivery of a defect-free item; Section 439 (3) BGB shall remain unaffected. If subsequent performance fails after a reasonable period of time, for whatever reason, the Buyer may - at its option - demand a reduction in the purchase price or withdraw from the contract; the assertion of damages or reimbursement of futile expenses shall also remain unaffected in this case - subject to the provisions in Clause 7. The Buyer is entitled to these rights immediately, i.e. without expiry of a reasonable period, if we refuse subsequent performance or if it is unreasonable for the Buyer for other reasons. The foregoing provisions shall not affect any claims of the Buyer arising from the assumption of a guarantee by us. Warranty claims against us shall become statute-barred after 1 (one) year, beginning with the delivery of the goods, unless we have fraudulently concealed the defect, in which case the regular limitation period of 3 (three) years shall apply. Claims for defects against us are only due to the Buyer and are not assignable. We shall only be liable for consequential damages to the extent of the value of our goods delivery.
We shall be liable for damages resulting from injury to life, body or health which are based on an intentional or negligent breach of duty by us or one of our legal representatives or vicarious agents. We shall only be liable for other damages if these are based on an intentional or grossly negligent breach of duty by us or one of our legal representatives or vicarious agents; In the event of a merely negligent breach of duty, our liability is excluded, unless the matter relates to the breach of essential contractual obligations (cardinal obligations). If we have negligently violated essential contractual obligations, our liability shall, however, be limited to the foreseeable damage typical for this type of contract.
We reserve title to all items delivered by us until the Buyer has settled all claims arising from the business relationship with us. Our reservation extends to the new products resulting from the processing of the reserved goods. The processing is carried out for us as the manufacturer. In the event of processing, combining or mixing with items not belonging to us, we shall acquire co-ownership in the ratio of the invoice value of our reserved goods to the invoice values of the other materials. As long as the Buyer is willing and able to duly fulfil its obligations towards us, it may dispose of goods owned or co-owned by us
in the ordinary course of business. Specifically:
a) If the Buyer extends the terms of payment of the purchase price to its customers, it must reserve ownership of the changed goods vis-à-vis these customers. Without this reservation, the Buyer is not authorised to dispose of the reserved goods.
b) The Buyer hereby assigns to us all claims arising from the sale of goods subject to retention of title, including bills of exchange and cheques, as security for our claims arising from the business relationship. In the event of the sale of goods co-owned by us, the assignment shall be limited to the share of the claim corresponding to our co-ownership share. In the event of processing within the framework of a contract for work, the claim for compensation for work amounting to the pro rata invoice amount for the co-processed reserved goods shall be assigned to us here and now. The Buyer shall only be authorised to resell or otherwise use the reserved goods if it has been ensured that the claims arising therefrom are transferred to us.
c) If the assigned claim is included in an open account, the Buyer shall herewith assign to us that part of the balance corresponding in its amount to the claim, including the closing balance pursuant to the current account. If interim balances are drawn and their carry-forward has been agreed, the claim to which we are entitled from the interim balance according to the above provision shall be treated as assigned to us for the next balance.
d) Until revoked by us, the Customer shall be authorised to collect the accounts receivable assigned to us. As long as we retain title, the Buyer shall duly treat goods subject to retention of title with care and keep them in safe custody, insofar as it can dispose of them. For the duration of the retention of title, the Buyer may neither pledge the reserved goods nor assign them by way of security. We must be notified immediately in writing or by fax of access by third parties to the reserved goods, for example by way of seizure or confiscation, as well as damage or destruction. The Buyer shall bear all costs necessary for the revocation of the seizure and for the replacement of the reserved goods, insofar as they cannot be recovered from third parties.
In the event of breach of the obligation to handle the reserved goods with care and other duties of care on the part of the Buyer and in the event of default in payment of secured claims, we shall be entitled to take back the reserved goods. The repossession only constitutes a withdrawal from the contract if we declare this in writing. After taking back the goods, we shall be entitled to realise them, whereby the proceeds shall be set off against the Buyer's liabilities less reasonable realisation costs. The same shall apply accordingly in all other cases where the Buyer acts contrary to the terms of the contract. If the realisable value of the securities exceeds the claims to be secured by more than 10%, we shall release securities of the Buyer's choice at the latter's request. If the retention of title is not permissible or only permissible to a limited extent according to the statutory provisions applicable in the country of the Buyer, our aforementioned rights shall be limited to the legally permissible extent.
Unless expressly otherwise agreed, the copyright and the right from the duplication to the masters, drafts and sketches prepared by us remain with us. Reproduction or duplication of the drafts is not permitted without our prior consent. Trademarks may only be used with the special written consent of the trademark owner in connection with the products processed or manufactured by the Buyer. If the execution of the order in accordance with the specifications and wishes of the Buyer infringes industrial property rights of third parties, the Buyer shall be liable for all resulting claims of the aggrieved party.
The contracting parties undertake to keep secret for an unlimited period all information which becomes accessible to them in connection with this contract and which is designated as confidential or is recognisable as a business or trade secret due to other circumstances, and not to record or exploit it in any way, unless this is necessary to achieve the purpose of the contract.
German law applies. The place of performance and jurisdiction for all mutual claims and actions is Osnabrück, Germany.