Last Updated: 02.2022
§ 1 Scope of application
(1) All deliveries, services and offers of PACKMATIC GmbH, Schönhauser Allee 180, 10119 Berlin (hereinafter "PACKMATIC") shall be based exclusively on these General Terms and Conditions of Delivery which are an integral part of all contracts which PACKMATIC concludes with its contractual partners (hereinafter referred to as "Customer") for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed upon again.
(2) The Customer's or third parties' terms and conditions shall not apply, even if PACKMATIC does not separately object to their application in individual cases. Even if PACKMATIC refers to a letter containing or referring to the Customer's or a third party's terms and conditions, this shall not constitute an agreement to the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers made by PACKMATIC are subject to change and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. PACKMATIC may accept orders within 14 days of receipt.
(2) The legal relationship between PACKMATIC and Customer shall be governed solely by the written contract, including these General Terms and Conditions of Delivery. This contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Oral promises made by PACKMATIC prior to the conclusion of the contract shall not be legally binding and oral agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing to be effective. With the exception of managing directors or authorised signatories, PACKMATIC's employees are not entitled to make verbal agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement.
(4) Information provided by PACKMATIC on the goods (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the goods. Information about the quality of the goods shall only be binding if confirmed in writing by PACKMATIC. The sending of samples/test rolls does not imply any such commitments; in particular, the right is reserved to deviations between samples and later series production due to technical reasons.
(5) PACKMATIC retains ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. Without PACKMATIC's express consent, the Customer may not make these items available to third parties, either as such or in terms of their content, disclose them, use them itself or have them used by third parties, or reproduce them. At PACKMATIC's request, the Customer shall return these items in full to PACKMATIC and destroy any copies made if they are no longer required by it in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of normal data backup is excluded from this.
§ 3 Prices and payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. Unless explicitly stated otherwise, the prices are in EUR ex works plus packaging, transport costs, the statutory value-added tax, customs duties for export deliveries as well as fees and other public charges.
(2) The preparation of printing plates, final artwork, printing documents and special tools shall be remunerated separately and invoiced separately.
(3) If there are at least four months between the conclusion of the contract and the agreed delivery and if the manufacturing costs change in the period due to changes in the prices for raw materials, materials and/or semi-finished products required for the performance of the contract and/or due to changes in wages and/or social security contributions by at least 5%, without the price change being foreseeable for the contracting parties at the time of conclusion of the contract, the contracting parties shall be entitled to demand a corresponding price adjustment.
(4) Invoice amounts shall be paid within fourteen days of the invoice date without any deductions, unless otherwise agreed in writing. The date of receipt by PACKMATIC shall be decisive for the date of payment.
(5) Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established and arise from the same order under which the delivery in question was made.
(6) PACKMATIC shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the Customer's creditworthiness and as a result of which the Customer's payment of PACKMATIC's outstanding claims is jeopardised.
§ 4 Delivery and time of delivery
(1) Deliveries shall be made ex works.
(2) Deadlines and dates for deliveries and services promised by PACKMATIC shall always be approximate unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
(3) PACKMATIC may - without prejudice to its rights arising from Customer's default - demand from Customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which Customer fails to meet its contractual obligations towards PACKMATIC.
(4) PACKMATIC shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in procuring the necessary official permits, official measures or - insofar as PACKMATIC has concluded a congruent hedging transaction - the absence of, incorrect or untimely delivery by manufacturers and/or suppliers) for which PACKMATIC is not responsible. In the event of obstacles of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the obstacle plus a reasonable start-up period.
(5) Insofar as performance of the contract is delayed by more than three months due to force majeure, PACKMATIC shall be entitled to withdraw from the contract without being obliged to compensate the Customer for any damage incurred.
(6) PACKMATIC shall only be entitled to make partial deliveries if (i) the partial delivery is usable for the Customer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered goods is ensured and (iii) the Customer does not incur any significant additional expenses or costs as a result (unless PACKMATIC agrees to bear such costs).
(7) PACKMATIC shall be entitled to make excess or short deliveries if the quantity deviation (i) is mandatory for technical production reasons and (ii) amounts to a maximum of 15%. The actual delivery quantity shall be invoiced.
(8) If PACKMATIC is in default with a delivery or service, PACKMATIC's liability for damages shall be governed by § 7 of these General Terms and Conditions of Delivery with the proviso that liability shall be limited to a maximum of 5% of the delivery value of the delayed delivery or service.
§ 5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of performance (Erfüllungsort) for all obligations arising from the contractual relationship is Berlin, unless otherwise specified.
(2) The method of dispatch and the packaging shall be at PACKMATIC's due discretion.
(3) The risk shall pass to the Customer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if PACKMATIC has also assumed responsibility for shipment. If dispatch or handover is delayed as a result of a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the goods are ready for dispatch and PACKMATIC has notified the Customer of this.
(4) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by PACKMATIC or a third party commissioned by PACKMATIC, the storage costs shall amount to 0.25% of the invoice amount of the goods to be stored per expired week. PACKMATIC reserves the right to claim and prove further or lower storage costs.
§ 6 Warranty, material defects
(1) The warranty period shall be one year from delivery. This period shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by PACKMATIC or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
(2) The delivered goods shall be inspected carefully immediately after delivery to the Customer or to the third party designated by the Customer. With regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful inspection, the goods shall be deemed to have been approved by the Customer if PACKMATIC does not receive a notice of defect within seven working days of delivery. With regard to other defects, the goods shall be deemed to have been approved by the Customer if PACKMATIC does not receive notification of the defect within seven working days of the time when the defect became apparent; if the defect was already apparent at an earlier time during normal use, however, this earlier time shall be decisive for the commencement of the period for giving notice of defects. The Customer shall give PACKMATIC or a third party appointed by PACKMATIC the opportunity to inspect the goods complained on site. At PACKMATIC's request, the goods complained of shall be returned carriage paid to PACKMATIC or to a third party designated by PACKMATIC. In the event of a justified complaint, PACKMATIC shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the goods are located at a place other than the place of intended use.
(3) In the event of material defects in the delivered goods, PACKMATIC shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the contract or reasonably reduce the purchase price.
§ 7 Liability
(1) PACKMATIC's liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 7, insofar as fault is relevant in each case.
(2) PACKMATIC shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless a breach of material contractual obligations is involved. Material contractual obligations are those obligations of PACKMATIC the fulfilment of which is essential to the proper performance of the contract and on the observance of which the Customer regularly relies and may rely.
(3) Insofar as PACKMATIC is liable on the merits for damages pursuant to § 7 (2), such liability shall be limited to damages which PACKMATIC foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the goods shall also only be eligible for compensation insofar as such damage is typically to be expected when the goods are used as intended.
(4) The above exclusions and limitations of liability shall apply to the same extent in favour of PACKMATIC's executive bodies, legal representatives, employees and other vicarious agents.
(5) Insofar as PACKMATIC provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
(6) The limitations of this § 7 shall not apply to PACKMATIC's liability for intentional conduct, gross negligence, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 8 Printing Templates, processing
(1) PACKMATIC is not obliged to check the suitability, correctness and completeness of any artwork provided by the Customer.
(2) The Customer guarantees that the artwork provided by the Customer does not infringe any third-party rights (e.g. copyright and trademark rights). In this respect, the Customer shall indemnify PACKMATIC upon first request against any claims of third parties.
(3) The goods are manufactured according to the Customer's specifications. PACKMATIC shall not be obliged to check the suitability of the goods for the intended use, in particular with regard to the filling material and for the intended handling (storage, transport). Assured properties only apply to unfilled goods.
§ 9 Retention of title
(1) Ownership of the goods shall not pass to the Customer until the purchase price has been paid in full. The Customer is obliged to keep the goods delivered under retention of title (hereinafter the "Retained Goods") carefully and recognisably as the property of PACKMATIC.
(2) The customer is entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (para. 7).
(3) If the goods subject to retention of title are processed into a new item by the Customer or a third party commissioned by the Customer, the processing shall be deemed to have been carried out by PACKMATIC, but without this giving rise to any liabilities for PACKMATIC. Acquisition of ownership by the Customer in accordance with § 950 BGB is excluded.
(4) If the Reserved Goods are processed, combined or mixed with other goods not belonging to PACKMATIC, and the Reserved Goods are packed with material from PACKMATIC, PACKMATIC shall acquire co-ownership of the new item or the mixed or packed stock in proportion to the value of the goods delivered by PACKMATIC and the other goods at the time of processing, mixing or packing. The Customer shall be obliged vis-à-vis PACKMATIC to make its calculation, from which the value of the Retained Goods in relation to its final price vis-à-vis its Customer results, available to PACKMATIC without delay upon request, providing suitable evidence (e.g. internal calculation documents; witnesses).
(5) In the event of further processing or sale of the Reserved Goods, the Customer hereby assigns to PACKMATIC by way of security the resulting claims against the purchaser (in the event of resale with other goods not belonging to PACKMATIC plus a 20% security surcharge). PACKMATIC accepts the assignment.
(6) PACKMATIC revocably authorises the Customer to collect the claims assigned to PACKMATIC in its own name. PACKMATIC may only revoke this direct debit authorisation in the event of realisation (para. 5).
(7) If the Customer fails to fulfil its contractual obligations (in particular payment of the purchase price) despite a reasonable grace period being set (realisation event), PACKMATIC shall be entitled to demand the return of the Reserved Goods.
§ 10 Final provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between PACKMATIC and the Customer shall be, at PACKMATIC's option, Berlin or the Customer's registered office. In such cases, however, the exclusive place of jurisdiction for actions against PACKMATIC shall be Berlin. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between PACKMATIC and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.