General Terms and Conditions of UPA PACK GmbH
§ 1 Scope of Application
(1) These General Terms and Conditions of UPA PACK GmbH apply exclusively to businesses, legal entities under public law, or special funds under public law as defined in Section 310 (1) of the German Civil Code (BGB). We do not recognize any terms and conditions of the purchaser that conflict with or deviate from our sales terms unless we have expressly agreed to their validity in writing.
(2) These General Terms and Conditions shall also apply to all future transactions with the purchaser, insofar as they are related legal transactions.
§ 2 Offers and Conclusion of Contract
If an order is to be considered an offer according to § 145 BGB, we may accept it within two weeks.
§ 3 Documents Provided
We reserve ownership and copyright to all documents provided to the purchaser in connection with placing an order, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we have given the purchaser our express written consent. If we do not accept the purchaser’s offer within the period specified in § 2, these documents must be returned to us immediately.
§ 4 Prices and Payment
Status: July 2019
(1) Unless otherwise agreed in writing, our prices are ex works and exclusive of surcharges for special agreements and applicable VAT.
(2) Payment must be made exclusively to the account stated on the front of the invoice. Deductions for early payment (discounts) require a specific written agreement.
(3) Unless otherwise agreed, the purchase price is payable within 10 days from the date of invoice. Interest for late payment shall be charged at a rate of 8% above the base interest rate per annum. The assertion of higher default damages remains reserved.
(4) If no fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to changes in labor, material, or distribution costs for deliveries made three months or later after contract conclusion.
Our offers remain valid until the specified expiration date. Extensions of validity must be in writing. UPA PACK GmbH reserves the right to adjust prices on a quarterly basis for long-term framework agreements/contracts in line with raw material market fluctuations. The reference for this is the EUWID price index for coreboard 250 g/m², 0.7 mm.
§ 5 Set-off and Right of Retention
The purchaser is only entitled to offset claims if its counterclaims have been legally established or are undisputed. The purchaser may only exercise a right of retention if its counterclaim arises from the same contractual relationship.
§ 6 Delivery Time, Default in Acceptance
(1) Delivery times are agreed individually or specified by us upon order acceptance. If not specified, the delivery time shall be approximately 10 business days from the conclusion of the contract.
(2) The start of the stated delivery period presupposes the timely and proper fulfillment of the purchaser's obligations.
(3) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we will notify the purchaser without delay and communicate a new estimated delivery time. If the service remains unavailable within the new timeframe, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the purchaser will be refunded immediately. Non-availability includes late self-delivery by our supplier, provided we have concluded a congruent covering transaction and neither we nor our supplier are at fault or we are not obligated to procurement in the individual case.
(4) Further delivery delay provisions are governed by statutory law. In any case, a reminder from the purchaser is required.
(5) If the purchaser is in default of acceptance or culpably breaches other cooperation obligations, we are entitled to claim compensation for the resulting damages, including additional expenses. Further claims remain unaffected. If the above conditions apply, the risk of accidental loss or deterioration of the purchased goods passes to the purchaser at the moment of default in acceptance.
§ 7 Transfer of Risk, Transport Damage
If the goods are shipped at the purchaser's request, the risk of accidental loss or deterioration passes to the purchaser upon dispatch, at the latest upon leaving our factory/warehouse. This applies regardless of whether shipment is made from the place of performance and irrespective of who bears the freight costs.
Goods lost or damaged in transit will only be replaced at current prices based on a new order. Any discrepancies with the delivery note or invoice must be reported in writing immediately upon receipt of the goods.
Transport damages must be confirmed by the carrier with due care to enable possible claims for recourse.
§ 8 Retention of Title
(1) We retain ownership of the delivered goods until full payment of all claims under the delivery contract. This also applies to all future deliveries, even if we do not explicitly refer to it in each case. We are entitled to reclaim the goods if the purchaser acts in breach of contract.
(2) The purchaser is obligated to handle the goods with care until ownership has passed. In particular, the purchaser must, at their own expense, insure the goods sufficiently at replacement value against theft, fire, and water damage (note: only applicable for high-value goods). If maintenance or inspection work is required, the purchaser must carry this out in good time and at their own expense.
Until ownership has passed, the purchaser must notify us immediately in writing if the delivered goods are seized or otherwise subjected to third-party interventions. If the third party is unable to reimburse us for legal and extrajudicial costs under § 771 ZPO, the purchaser is liable for the loss incurred.
(3) The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. The purchaser hereby assigns to us all claims against third parties arising from such resale in the amount of the invoice value agreed with us (including VAT), regardless of whether the goods were resold without or after processing. The purchaser remains authorized to collect the claim even after assignment. Our right to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the purchaser meets their payment obligations from the collected proceeds, is not in default, and no application for insolvency proceedings has been filed or cessation of payments has occurred.
(4) The processing or transformation of the goods by the purchaser is always carried out on our behalf. In such case, the purchaser’s expectant right continues in the transformed item. If the goods are processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the objective value of our goods to the other processed items at the time of processing. The same applies in case of mixing. If mixing results in the purchaser’s item being the main item, it is agreed that the purchaser transfers proportionate co-ownership to us and safeguards our ownership or co-ownership. To secure our claims, the purchaser also assigns to us claims arising from combining the reserved goods with real property against third parties; we hereby accept the assignment.
(5) We undertake to release securities due to us at the purchaser’s request if their value exceeds our secured claims by more than 20%.
§ 9 Warranty and Notification of Defects / Recourse
(1) Warranty rights of the purchaser require proper compliance with their inspection and complaint obligations under § 377 of the German Commercial Code (HGB).
(2) Warranty claims expire 12 months after delivery of the goods. Any return shipment requires our prior consent. The customer must inspect the conformity of delivered goods and preliminary/intermediate/final products sent for correction immediately upon receipt and notify us of any defects in writing. This also applies to approval samples, which must be checked within one week. If the delivered goods conform to the customer-approved sample or unobjected preliminary/intermediate products, they are deemed contractually compliant.
(3) The primary reference for the agreed quality is our order confirmation. If, despite all due care, the delivered goods show a defect that existed at the time of risk transfer, we may, subject to timely notification, either remedy the defect or provide a replacement at our discretion. For bulk deliveries of homogeneous goods, the entire batch may only be returned as defective if random sampling (per DIN ISO 11093-1) confirms defects. We must be given the opportunity for supplementary performance within a reasonable time.
(4) If rectification fails, the purchaser may, without prejudice to any damage claims, withdraw from the contract or reduce the payment.
(5) No warranty claims exist for minor deviations from the agreed quality, minor impairment of usability, natural wear and tear, or damage arising after the transfer of risk due to improper handling, excessive use, unsuitable operating materials, faulty construction, unsuitable subsoil, or external influences not assumed under the contract. Improper modifications or repair work by the purchaser or third parties void any warranty.
(6) Claims for expenses necessary for supplementary performance, especially transport, travel, labor, and material costs, are excluded if increased due to subsequent relocation of the goods unless such relocation corresponds to the intended use.
(7) Purchaser’s recourse claims against us only exist if they have not agreed to terms with their buyer exceeding mandatory statutory warranty rights. The scope of recourse is also subject to paragraph 6.
§ 10 Liability
(1) We shall only be liable for damages arising from the breach of an essential contractual obligation or from intentional or grossly negligent conduct on our part, by our legal representatives or agents. In the event of slight negligence in breaching an essential obligation, liability is limited to the foreseeable damage typical for the contract. Essential obligations are those enabling proper contract performance and on which the customer reasonably relies.
(2) Any further liability for damages is excluded. Liability for culpable injury to life, body, or health under statutory provisions remains unaffected. This also applies to mandatory liability under the German Product Liability Act.
§ 11 Miscellaneous
(1) This contract and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office unless otherwise stated in the order confirmation.
(3) All agreements made between the parties for the execution of this contract must be in writing.
(4) Should individual provisions be or become invalid or contain a gap, the remaining provisions remain unaffected. The parties undertake to replace the invalid provision or fill the gap with a legally permissible provision closest to the original economic intent.
(5) Manufacturing Tolerances / Product Specifications: UPA PACK strives to deliver products of the highest quality. Our products are manufactured in line with current technical standards and industry norms. Dimensional tolerances are governed by applicable DIN-ISO standards. Special tolerances or material specifications require express agreement.
(6) Depending on market conditions, we reserve the right to use equivalent alternative raw materials.
(7) Samples must be inspected and approved by the customer at their own expense. Any defects must be reported. If our products match the approved samples, they are deemed to meet contractual specifications at the time of risk transfer.
(8) Unless otherwise agreed, we may deliver up to 10% more or less than the ordered quantity. Billing will be based on actual delivery.
(9) Weight tolerance is ±8%.
(10) Storage Conditions: Our products must be stored appropriately. To preserve product properties, they must be stored at 20–22°C and 50–55% humidity. Protect from moisture and ensure proper ventilation.
Status: July 2019