General Terms and Conditions of smartflex-printing GmbH

I. Applicability

All agreements and offers are based on the contractor’s terms and conditions. They are deemed to be accepted by placing the order or accepting the delivery if the client has been given the opportunity and reasonable time within the business relationship to read the content of the terms and conditions. Deviating terms and conditions of the client, which the contractor does not expressly acknowledge in writing shall not be binding, even if they are not expressly objected to.

II. Price quotation

1. Quotations are only valid if they are submitted in writing.
2. The quoted prices are subject to the proviso that the client’s order data on which the quotation was based remain unchanged. The quoted prices do not include value added tax (VAT). They apply ex works unless otherwise agreed. The prices do not include packaging, freight, postage, insurance and other shipping costs, unless otherwise agreed in individual cases.

III. Acceptance of order – order – order placement

1. The contract shall be deemed concluded when the order has been confirmed in writing by the contractor. Subsequent changes to the order data, caused by the client, shall entitle the contractor to make corresponding changes to the contractual terms affected thereby. All changes also require written confirmation.
2. If the contractor subsequently becomes aware of circumstances that jeopardise the contractor’s claim, or if the client is in default with due obligations towards the contractor, the contractor may stipulate that any further processing of the order as well as the delivery shall be dependent on an advance payment; the contractor may also demand appropriate assurance.

IV. Execution

1. Advice

Advice, information and suggestions about the use, processing and application options of our products only contain a quality warranty if this has been agreed in writing.

2. Samples/test rolls

The provision of samples/test rolls, etc. is non-binding and does not constitute a quality warranty.

3. Consent to technical specifications by the client

Print and/or design templates submitted to the client by the contractor must also be checked by the client to ensure that they meet all essential and required requirements for the use of the packaging material, packaging aids or the manufactured product.

The client shall sign and return the documents as a sign of consent.

The client must clearly indicate any requested corrections and recognisable defects.

4. Data security

Deliveries (including data carriers, transmitted data) by the client or by a third party engaged by the client shall not be subject to any auditing duty on the part of the contractor. With regard to data transmissions, the client must use state-of-the-art security programs to protect against computer viruses before transmission.

5. Tolerances

The contractor is entitled to deviate from the ordered quantity by up to +/-10% for deliveries, and by up to +/-20% for custom-made products and small quantities. Small quantities are production quantities of less than 500 sq m. For printed materials, this rule applies per type or print motif. The actually delivered quantity shall be invoiced. Quantity differences of up to +/-3% and size deviations of +/-5% are reserved, as are area tolerances in plastic application of +/-15%, film thickness tolerances of +/-10%, and fluctuations of +/-3 g/sq m for coatings under 30 g/sq m and +/-10% for coatings over 30 g/sq m.

The order shall be executed in commercial quality in accordance with the generally accepted rules of engineering in the context of technically necessary material and process-related tolerances, unless specific order standards are stipulated. Minor deviations that are customary in the industry (including colour deviations for print jobs) are permissible.

V. Delivery time

1. Compliance with an agreed delivery time presupposes that the client fulfils its contractual obligations (e.g. provision of printing documents, consent to the execution templates, etc.) in due time. It is fulfilled by the contractor if the goods are ready for dispatch on the agreed date.
2. If the client requests changes to the order affecting the production time after the order confirmation has been received, a new delivery period shall begin with the confirmation of the change.

VI. Delay in delivery

1. The delivery period shall commence with the dispatch of the order confirmation, but not before the client provides all necessary documents, approvals and releases; and, if applicable, not before receipt of an agreed down payment.
2. The delivery date shall be deemed to have been met if the delivery item has left the factory or notification of readiness for dispatch has been issued by the time the delivery date expires.
3. The delivery period shall be extended appropriately in the event of measures related to industrial labour disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles that are beyond the control of the contractor (including general shortages of raw materials and energy, traffic bottlenecks, official interventions, war and riots as well as all major fires), insofar as such obstacles demonstrably have a considerable impact on the completion or delivery of the ordered item. 
   This shall also apply if the circumstances occur at subcontractors’ production facilities. The aforementioned circumstances are also not the responsibility of the contractor if they arise during an already existing delay. In important cases, the contractor shall notify the client as soon as possible of the beginning and end of such obstacles.
4. If there is a delivery delay caused by the contractor, the client shall grant the contractor a reasonable grace period of at least four working weeks.
5. Compliance with the delivery period shall be conditional upon fulfilment of the client’s contractual obligations.
6. Compensation for damages up to five times the order value, but not exceeding €75,000, can only be claimed in cases of intent and gross negligence. The financial limitation of liability shall not apply in the event of wilful intent on the part of the contractor.

Delay-related general costs of an operational standstill of the client shall not be assumed.

VII. Delay in acceptance

If acceptance does not take place in accordance with the contractual agreements, the contractor shall be entitled to charge the incurred costs (including its own and third-party storage costs). The quality and risk hazard shall pass to the client no later than after the expiry of six months from the agreed first delivery date.

VIII. Invoice and payment

1. Invoicing and payment shall be made in euros. The invoice shall be issued when the goods are ready for dispatch as defined in the contract.
2. Unless otherwise agreed, payment shall be made within 30 days of the invoice date or within 14 days with a 2% discount.
3. Bills of exchange will only be accepted upon previous explicit agreement and only as a conditional payment.
4. Interest and costs for discounting or redemption of bills of exchange shall be borne by the client.
5. If there is a significant deterioration in the financial circumstances of the client or if it defaults on payment or acceptance for these reasons, the contractor shall be entitled to demand immediate payment, including payment for goods not yet delivered, invoices not yet due and bills of exchange and cheques not yet due, insofar as the contributions are covered by order-related expenses of the contractor.
6. Payment/delay in payment

Unless otherwise agreed, the invoice amount shall be due after 30 days without deduction and interest shall be charged from the due date in accordance with § 288 II BGB (German Civil Code) at 9% above the basic interest rate with a flat rate of €40.

7. Only undisputed or legally established claims may be offset against payment claims.
8. The client shall bear all fees, costs and expenses incurred in connection with any legally successful legal action against it outside Germany.
9. Contract orders shall be invoiced according to the quantity delivered.
10. 10.The contractor has the right to assign its claims against the client to a third party.

IX. Retention of title

1. Our deliveries are exclusively subject to retention of title. Ownership shall not pass to the client until it has settled all its liabilities arising from the business relationship.
2. For open accounts, the retained ownership shall also be deemed to be security for the contractor’s balance claim. This shall also apply if the purchase price for specially designated claims has been paid.
3. In the event of combination with other goods, the contractor shall acquire co-ownership of the new items, even if they are regarded as the main item; the joint ownership shall be calculated as the ratio of the invoice value of the reserved goods to the value of the items combined with them. 
   The same shall apply to processing.
4. If the goods are resold, the counterclaim for this resale shall be deemed to have been assigned to the contractor with first priority in whole or in part in proportion to the co-ownership. If the value of the aforementioned security exceeds the total claim against the client by more than 10%, the contractor shall release securities of its choice at the client’s request.

X. Duty of inspection and warranty

1. The goods must be inspected immediately after arrival at the designated place with the diligence of a prudent merchant. The inspection shall cover all characteristics that are essential and required for the use of the goods.

The client’s obligation to inspect the delivered goods also applies if reference samples have been sent. Complaints are only admissible within two weeks after receipt of the goods.

2. Claims for hidden defects that cannot be detected after immediate inspection may only be asserted against the contractor if the complaint is received by the contractor within three months after the goods have left the supplier’s production facility. Defects in a portion of the delivery may not give rise to a complaint against the entire delivery unless separation of the defective and non-defective parts is only possible by unreasonable means.
3. If the delivery item is defective or lacks warranted characteristics or if it becomes defective within the warranty period due to manufacturing or material defects, the contractor shall, at its own discretion, replace or repair it under exclusion of any further warranty claims by the client. 
   If the contractor allows a reasonable grace period granted to it to elapse without having replaced the item or rectified the defect, or if the rectification fails, the client shall be entitled to withdraw from the contract under exclusion of all other claims. The contractor shall be liable for replacement deliveries and rectification work to the same extent as for the original delivery item.
4. The contractor does not guarantee that the goods are suitable for the purpose envisaged by the client unless specific characteristics have been expressly agreed in writing.
5. Further claims are excluded to the extent legally permissible; this applies in particular to claims for compensation for damage that has not occurred to the goods themselves.

XI. Liability

1. The contractor shall be liable

1. for damage caused intentionally or due to gross negligence,
2. in the event of a slightly negligent breach of essential contractual obligations, including by legal representatives or vicarious agents of the contractor; in this respect, the contractor shall only be liable for the direct average damage that is foreseeable and typical for the type of product,
3. in the event of culpable loss of life, bodily injury or damage to the health of the client,
4. in case of fraudulently concealed defects and assumed warranty for the quality of the goods,
5. in the event of claims under the German Product Liability Act.

2. Other claims for damages and reimbursement of expenses of the client, irrespective of the legal basis, are excluded.

XII. Limitation

Claims of the client for warranty and damages (clauses X. and XI.) shall become statute-barred with the exception of the claims for damages mentioned under XI.1., which shall become statute-barred after one year beginning with the (delivery) of the goods. This does not apply if the contractor has acted fraudulently.

XIII. Dispatch and packaging

1. Shipping shall take place at the risk of the client, and, unless otherwise agreed, shipping costs shall be invoiced to the client.
2. The packaging shall be determined in the order confirmation, whereby pallets, cover boards, wooden crates and other loan packaging shall remain the property of the contractor. The return shipment must be made within a reasonable period in perfect condition and, unless otherwise agreed, free of charge.

XIV. Partial invalidity

Should parts of these terms and conditions be or become invalid, the remaining agreements shall nevertheless remain valid.

XV. Applicable law, place of fulfilment and jurisdiction

1. The contract is subject to the laws of the Federal Republic of Germany. Application of the Uniform Law on the International Sale of Goods dated 17/07/1973 is excluded.
2. The place of fulfilment for deliveries is the registered office of the contractor.
3. The place of jurisdiction, including for proceedings based on documentary evidence, shall be the Regional Court of Aachen, provided that both contracting parties are fully qualified merchants.

 

Version: July 2022