I. General matters, scope of application
- Deliveries, services, and offers of comepack GmbH (“comepack”) towards companies are made only based on these general terms and conditions (“GTC”). Upon their first integration, they shall apply to all future business relationships with the contracting partner (“Customer”), even if they are not explicitly agreed again.
- Deviating, contrary or supplementary conditions shall not become part of the contract, except if their application is explicitly agreed in writing. This shall also apply if comepack renders the service to Customer without reservations, in spite of knowing of deviating or supplementary terms.
II. Offer, conclusion of contract, offer documents
- All offers by comepack are subject to change and non-committal. A legally binding contract shall only be entered into once comepack declares acceptance of the offer in text form.
- Customer may accept an offer made to him by comepack within 30 days from the time of receipt. Acceptance must be declared in text form. A later declaration shall be deemed an offer towards comepack.
- Acomepack reserves property rights and copyrights in any figures, drawings, and calculations. This shall also apply to such written documents that are designated as confidential. Passing on to third parties shall require the explicit written consent of comepack.
III. Prices, payment terms, retention right, prohibition of offsetting
- The prices indicated by comepack in the offer/the order confirmation shall apply, plus the respective applicable statutory VAT. In the absence of any agreement to the contrary, the prices shall be “ex works”. This shall not include any costs for packaging and delivery.
- The agreed remuneration shall be paid. If the price has increased by the time of delivery due to any changes to the price-determining factors (such as wage, material, and sales costs for deliveries) as a consequence of changes to the market situation or rate fluctuations (such as crude oil, tolls, etc.), the higher price shall apply. If the price increase is 20% or more, Customer shall have the right to withdraw from the contract. The declaration of rescission must be made in text form without undue delay after notification of the price increase.
- Invoiced amounts shall be due without deduction at the latest ten days after the date of the invoice unless explicitly agreed differently in text form. Timeliness of the payment shall be determined based on receipt of the payment by comepack.
- Any arising banking fees, in particular due to payments in other currencies than EUR, or in the case of money transfers from abroad, shall be borne by Customer.
- If the purchaser does not pay when due, and if the purchaser is a merchant within the meaning of the Commercial Code, the outstanding amount shall bear interest at 9 percentage points above the base interest rate. comepack reserves the right to prove from case to case that the payment delay has caused a greater damage.
- The purchaser shall only have a right to offsetting if his counter-claim has been finally determined, is undisputed, or has been recognised by comepack. The purchaser shall only have the right to exercise any retention rights if his counter-claim is due and based on the same contractual relationship.
IV. Partial delivery, delivery time, passing of risk
- comepack shall have the right to make partial deliveries.
- Information on the delivery deadline shall be non-committal unless explicitly agreed differently.
- In the case of a binding delivery period, this shall extend in the cases of strike and force majeure. The extension shall correspond to the duration of the delay. This shall apply accordingly if Customer does not comply with any contribution obligations.
- Unless explicitly agreed differently, the delivery shall be made ex works.
- Any claims to defects on the purchaser’s side shall require that he has properly met his statutory examination and complaint obligations.
- As far as there is any defect of the object of delivery, comepack shall, at its own discretion, have the right to remove defects or to make a replacement delivery. If this fails, Customer shall also have the right to withdraw from the contract.
- The warranty period shall be one year. The period of expiration in the case of a delivery recourse in accordance with §§ 478, 479 of the German Civil Code (Bürgerliches Gesetzbuch; BGB) shall not be affected.
- Item VI shall apply to damages claims.
VI. Liability for damage
- The liability of comepack for contractual violations of obligations and from tort shall be limited to malicious intent and gross negligence. This shall not apply to any violations of life, body and health, claims due to violation of cardinal obligations, i.e. obligations resulting from the nature of the contract, and the violation of which endangers achievement of the contractual purpose, and reimbursement of default damage (§ 286 BGB). In this respect, comepack shall be liable for any degree of fault.
- The above exclusion of liability shall also apply to slightly negligent violations of obligations of our vicarious agents.
- Liability in the case of violations of life, body and health shall be limited to the damage typically occurring.
- Liability in the case of delivery default shall be limited in amount to 0.5% of the value of the delivery for each complete week of delay, but at most 5% of the value of the delivery, within the scope of flat-rate compensation for delays.
- Liability in the case of violation of cardinal obligations shall, unless subject to items 3 or 4, be limited to the typically foreseeable damage.
- Any claims from liability for damage not due to violation of life, body or health of Customer, and for which slight negligence is not excluded, shall expire within one year, starting at occurrence of the claim, or in the case of damages claims from handover of the object.
- As far as liability for damages is excluded or limited towards us, this shall also apply to the personal liability for damages of our employees, workers, representatives, and vicarious agents.
VII. Reservation of title
- comepack reserves title in the goods until all claims from the business relationship with Customer have been met, even if the specific goods have already been paid for.
- Customer shall inform comepack without undue delay about any forced execution measures of third parties concerning the reserved goods, including the documents required for intervention; this shall also apply to any other type of impairment. Independently of this, Customer shall inform third parties of the rights to the goods in advance. Customer shall bear the costs arising for comepack from intervention as far as the third party is unable to reimburse these.
- Customer shall have the right to sell on/rent out the reserved goods in the scope of regular business. Customer hereby assigns the claims resulting for him from the transactions named towards his contracting partner to comepack for the case of further sale/renting of the reserved goods as collateral, until all claims from the business relationship are met. If reserved goods are processed, transformed, or connected to any other object, comepack shall acquire direct title in the produced object. It shall be deemed reserved goods. Customer remains entitled to collect the claim. comepack’s right to collect the claim directly shall not be affected. However, comepack shall not make use of this while Customer meets his payment obligations from the underlying legal transaction as a whole.
- If the value of the collateral exceeds securing of the claims of comepack against the orderer by more than 20%, comepack shall, upon Customer’s request, and at the choice of comepack, release collateral at the corresponding scope.
- Customer commits to keeping any business, operational, and technical matters of comepack that he gains knowledge of in connection with the business relationship secret and to treating them confidentially.
- As far as they exceed the state of the art at the time of disclosure, the following information shall be subject to the obligation to secrecy:
- any information explicitly designated “confidential” or “secret” in writing;
- any information designated as requiring confidentiality;
- any technical information, in particular any technical drawings and other technical documents such as materials, goods, samples, templates, equipment, devices, technical processes, and other technical knowledge. Any commercial property rights and other legal assets, in particular manuscripts, texts, technical statements, photographs, films, videos, recordings, software, sound recordings, and similar rights and assets.
- Customer commits to taking all measures required in order to ensure secrecy of the information disclosed by comepack and to prevent it becoming accessible to any third parties. Customer’s obligation shall also apply towards companies of the group, licensees or customers who receive access to the information requiring secrecy in any manner. The information must only be provided to such persons who have also been committed to secrecy. Such information must not be reproduced or used commercially in Customer’s operation without advance consent in text form.
- The obligation to secrecy shall apply no matter if information was or is made accessible orally, documented, machine-readable, electronic, or in any other form, e.g. as equipment, samples, templates, or products.
- The obligation to secrecy and non-use shall not apply as far as the information
- verifiably was already known to Customer before the disclosure,
- was known to the public or generally accessible before the disclosure,
- has become known to the public or generally accessible after the disclosure without any contribution or fault of Customer,
- essentially corresponds to information disclosed or made available to Customer by an authorised third party at any time,
- must be disclosed due to a binding authority or court order or mandatory statutory provisions, provided that comepack was informed about the disclosure in time beforehand,
- that has been released for publication by comepack in text form.
6. The obligations from VIII. shall continue throughout the period of the business relationship. They shall commence with initiation of the business and continue in effect for 5 years beyond termination of the business relationship or its initiation.
IX. Place of performance, choice of law, venue
- The law of the Federal Republic of Germany shall apply. Application of UN sales law is excluded.
- If Customer is a merchant, a legal entity under public law or a public-law special fund, the venue shall be the local court (Amtsgericht) Weinheim or the regional court (Landgericht) Mannheim that are materially competent for comepack. comepack shall have the right to sue Customer at Customer’s general place of jurisdiction.
Stand: February 2022