SENATOR International Verpackungs GmbH – General Terms and Conditions of Packaging
1. General – Validity – Quotation
1.1 These general terms and conditions of packaging shall only apply towards enterprises within the meaning of §§ 14, 310, sub-section 1, German Civil Code. Our general terms and conditions of packaging shall apply exclusively; contradictory terms and conditions shall only be binding if we have expressly acknowledged them in writing. This shall also apply if we render the service owed by contract without reservation despite knowledge of contradictory ordering terms.
1.2 To the extent not agreed to the contrary, our quotations shall be subject to change without notice.
2. Scope of services - written form
2.1 Our written order confirmation shall be decisive for the scope of the services to be rendered by us.
2.2 Oral or telephone agreements as well as all other declarations, in particular side-agreements and amendments of the contract, shall require written form in order to take effect. This shall also apply to a rescission of this agreement. The same shall apply to all and any assurances, consultancy and declarations by our personnel.
3.1 To the extent not agreed to the contrary, our prices shall apply exclusive of the statutory value added tax to the extent that it is due at the time of invoicing.
3.2 If unforeseeable, more difficult working conditions for which we are not answerable occur in the course of the handling of the contract, we shall be entitled to increase the price accordingly. This shall in particular apply to the extent that additional standstill costs of the personnel deployed by us occur in Customer's company.
4. Client's duties
4.1 Proper performance of the packaging order shall presuppose that the goods to be packed are provided to us in good time in a condition ready and suited for performance of the packaging order. If not agreed to the contrary in writing, parts particularly susceptible to corrosion shall be provided cleaned and treated with suitable contact corrosion protection agents.
4.2 Client shall make written reference to all and any necessary and particular treatment of the goods to be packed. For example, we shall be informed of the goods for which tight packaging with addition of desiccants or other corrosion protection methods is necessary on account of specific risks of corrosion.
4.3 Client shall further make written reference to specific risks resulting from the requirements of the transport route in question, of means of loading and transport (e.g. bulk carrier) as well as any possible subsequent storage, also with a view to general environmental strains.
4.4 Client shall be responsible for translation of package lists into foreign languages to the extent that nothing has been agreed to the contrary.
4.5 To the extent not agreed to the contrary, packaging shall be done in our company. Punctual delivery and removal of the goods shall be a matter for Client. To the extent that a packaging order is to be performed outside our company, Client shall provide sufficient space, energy and the lifting gear including the necessary operating personnel necessary for a speedy and correct performance of the packaging order free of charge.
4.6 The information necessary for marking shall be transmitted to us in writing in good time before the performance of the packaging.
4.7 Client shall ensure sufficient insurance of the goods to be packed (e.g. transport, warehouse, fire insurance), notwithstanding Contractor's third-party liability pursuant to Section 10.
5.1 To the extent not agreed to the contrary in writing, payment shall be made without any deduction free our payment office; the details can be seen from our invoice.
5.2 Client's right of retention shall be ruled out to the extent that it is not based on the same contractual relationship, as shall offset with disputed claims or those which are not legally effective. We shall be entitled to avert the exercising of the right of retention by collateral – also by a surety.
6. Performance periods
6.1 In the absence of a deviating written agreement, our written order confirmation shall be decisive for the performance period.
6.2 The performance period shall be extended suitably in the occurrence of unforeseen incidents, regardless of whether they occur with us or elsewhere, e.g. supply of the necessary packaging materials despite proper and punctual ordering. The performance period shall also be extended if the aforementioned incidents occur during arrears in performance already in existence. We shall be obliged to notify Client of the start and end of such incidents.
6.3 If the agreed date is delayed for reasons for which Client is answerable, all and any additional costs shall be charged to the latter.
7. Passage of risk
7.1 To the extent not agreed to the contrary, the risk of chance destruction or chance deterioration shall pass to Client from loading outgoing vehicle, however no later than when it accepts the packed goods. The same shall apply if Client has fallen into acceptance or debtor's arrears.
8. Retention of title
8.1 We reserve ownership to our packaging materials until payment of all liabilities of Client towards us which have already originated.
9. Liability for defects
9.1 To the extent that we are obligated to warranty, we shall be obliged either to remedy the defect at our own expense or to undertake re-packaging at our own discretion. To attend to the warranty affecting us, Client shall grant us the necessary time and opportunity.
9.2 If remedying of defects fails for reasons for which we are answerable, in particular if the remedying of defects is delayed over and above the suitable periods set for us or if we are not in the position to remedy the defect, Client shall be entitled to withdraw from the contact or to demand a corresponding reduction of the remuneration (cancellation or reduction). Said rights shall also accrue to Client if we culpably delay the remedying of the defects or culpably breach the duty to remedying of defects applying to us.
9.3 Upon acceptance of the packed goods at the place of delivery, Client shall be obliged to examine the packaging for obvious and recognisable defects. To the extent that said examination manifests defects, Client shall be obliged to issue a written notification of defects in order to comply with its warranty and damage claims and to give us the opportunity of surveying the situation. The warranty period shall commence with passage of risk.
9.4 The prerequisite for any warranty liability shall be proof that the defect giving rise to complaint is based on a breach of duty which has its cause before the passage of risk. This shall in particular also apply to the extent that a preserving packaging has been opened or damaged for reasons of custom law inspections.
10. Limitation of liability – indemnification
10.1 To the extent that we are liable for damage to the packaging or for economic damage, our liability shall be limited to the coverage by our third-party liability insurance. The sum insured for property damage amounts to EUR 500,000 per incident of damage. Economic damage of up to EUR 50,000 shall also be covered. For personal and property damage, a lump-sum insured of EUR 5,000,000 exists. We shall provide detailed information upon request.
10.2 Taking the regulation from sub-section 10.1 into due account, Client shall be free to demand further-reaching insurance coverage as a result of the specific risk. We shall endeavour to comply with this, but can assume no warranty with a view to the specialities of the insurance market. To the extent that we are in the position to conclude a further-reaching insurance in favour of Client, Client shall be obliged to assume the additional premium due.
10.3 If our packaging service entails provision of an adequate corrosion protection corresponding to the state of the art, our liability shall be limited to the duration of the agreed preservation period started from the date of packaging.
10.4 For container packaging, the liability shall end when the containers are opened.
10.5 The limitation of liability according to sub-section 10.1 shall also apply to claims to damages on account of a lack of assured properties of the packaging and also in the event of negligent breach of cardinal duties.
11. Indemnification in favour of third parties
To the extent that liability affecting us has been ruled out or limited above, this shall also apply to all and any claims which Client makes against our employees / workers / fellow-workers / vicarious agents / sub-contractors.
12. Onus of proof – barring by limitation
12.1 The onus of proof for the existence of a case of warranty or liability shall be with Client, which shall in particular be obliged to secure all and any evidence on site, so that we have the opportunity of convincing ourselves of the justification of the amount and the reason of the claim being made. If it does not grant us this opportunity, we shall be exempted from all liability to this extent.
12.2 As a matter of principle, our liability shall be barred in the statutory warranty periods; this shall also apply to all and any damage to the packed goods. To the extent that property or personal damage exceeding this has occurred, the statutory provisions for barring by limitation shall apply.
13. Place of jurisdiction – scope of application – German language – applicable law
13.1 In business dealings with merchants, public-law entities or public-law funds, the place of jurisdiction for all disputes shall be the registered office of our enterprise (Witten), albeit for packaging transactions with our branch (e.g. Augsburg), the location of the branch (e.g. Augsburg).
13.2 In the interpretation of the present contract, the wording of the contract written in the German language shall exclusively be binding. Declarations and negotiations shall be in the German language. Regulation of the contractual and extra-contractual relationships between the contracting parties shall exclusively be governed by the law of the Federal Republic of Germany, ruling out standardised purchase law, standardised conclusion of contracts and the UN Vienna Convention on the International Sale of Goods (CISG). Procedural law of the Federal Republic of Germany shall apply to any possible judicial proceedings.
14. Lien agreement
To secure all claims accruing to us according to the present agreement, even those from services concluded by delivery, a contractual lien on the goods provided to us for packaging or for the exercising of other activities, which is hereby agreed, shall accrue to us.
15. Storage charges
We presuppose that approval for packaging exists upon delivery. The time free of storage charges for parts to be packed by Senator shall be 2 weeks following receipt of the goods. The time free of storage charges for packages delivered packed shall be 1 week following receipt of the goods. Thereafter, the storage charges according to our "General price List" shall be charged.
Differing regulations shall require a written quotation by SENATOR INTERNATIONAL Verpackungs GmbH.
16. Final provisions
Measures and agreements not contained in the present general terms and conditions of packaging and the provisions of the packaging contract, with all its integral parts, concluded in each case and supplemented by them, have not been made, in particular no oral side-agreements. Amendments and supplements shall be recorded in writing for reasons of evidence.
If a provision of the present general terms and conditions of packaging or the packaging contract concluded is or becomes ineffective and/or unenforceable, regardless of the reason, the validity of the remaining provisions shall not be affected. The ineffective or unenforceable provisions shall be interpreted, re-interpreted or replaced in such a way that the intended commercial outcome is achieved as equivalently as possible.
The contracting parties engage to replace the ineffective or unenforceable provisions by a legally flawless regulation and to do everything that can be reasonably expected in good faith in order to secure the effectivity of the contractual relationship and to make its performance possible.