General Terms and Conditions of Business and Delivery of Hertel & Co. GmbH

We conclude contracts exclusively on the basis of our following General Terms and Conditions. They also apply in particular to future and verbally concluded contracts. Deviating provisions, in particular the buyer's terms and conditions of purchase, shall only become part of the contract if this has been expressly agreed in writing. Our General Terms and Conditions shall also apply if we carry out the delivery to the customer in the knowledge that the customer's terms and conditions conflict with or deviate from our General Terms and Conditions. Provisions agreed in individual contracts within the contractual relationship shall take precedence over the General Terms and Conditions. Should individual provisions be invalid, the remaining provisions shall remain valid.


1. conclusion of contract

  1. Our offers are subject to change. We reserve the right to make technical changes and changes in shape, colour and/or weight within reasonable limits.
  2. All verbal agreements are invalid.
  3. The scope of delivery is determined by our written order confirmation. If there is no such confirmation, our offer shall be decisive. Subsidiary agreements and amendments must be made in writing.


2nd sample

Samples are made by hand; customary and insignificant deviations (e.g. material, quality, dimensions, design, colour, thickness, weight, etc.) compared to machine-made deliveries are accepted by the parties within the scope of the agreed quality.


3. prices and terms of payment

  1. The prices stated in our order confirmations plus the statutory value added tax shall apply. We are entitled to increase the price agreed with the customer if four months have elapsed since the conclusion of the purchase contract and higher costs arise due to statutory or official orders, for example due to an increase in value added tax, the imposition of inspection fees and the levying of customs duties, or if material and labour costs increase. We will explain and justify the reason and amount of the purchase price increase to the customer. The customer has a right of cancellation if the increase amounts to more than 5 %.
  2. Payments are to be made within 30 days net or within 14 days with a 2 % discount from the date of delivery, which is the date of the invoice. Invoices with an amount of less than EUR 50 are payable immediately net.
  3. If the customer is in default of payment, we shall be entitled to demand default interest in the amount of 9 % points above the base interest rate without further proof, provided the customer is an entrepreneur. We reserve the right to claim higher damages for default. The provision of § 353 HGB remains unaffected. If a customer who is a consumer is in default of payment, the interest rate shall be 5 % points above the base rate.
  4. Payment by bill of exchange and cheque shall be made on account of performance. Bills of exchange shall only be accepted on account of payment after prior written agreement. We are entitled to refuse to accept bills of exchange and cheques. If the buyer culpably fails to meet his payment obligations, in particular if he does not honour cheques and bills of exchange and suspends his payments, we shall be entitled to declare the entire remaining debt due, even if we have accepted cheques and/or bills of exchange. This does not apply if there is no serious breach of contract. Instead of calling in the entire remaining debt, advance payments for a specific period may also be demanded; this applies in particular if the specific remaining debt has not yet been finally determined.
  5. The purchaser shall only have a right of set-off if his counterclaims have been recognised by declaratory judgement or are undisputed. The buyer may only exercise a right of retention if his counterclaim is based on the same contractual relationship. The right to refuse performance according to § 320 BGB remains unaffected.
  6. When the contract is concluded, we assume that the buyer is creditworthy. If we subsequently become aware of circumstances which make the creditworthiness of the buyer appear insufficient, we may demand payment of the agreed price concurrently with delivery of the goods or the provision of security, setting a reasonable deadline. If the buyer refuses to accept the goods concurrently against payment or to provide security within the period set, we shall be entitled to withdraw from the contract. Irrespective of this, we may demand security or cash payment for any current bills of exchange.


4. dispatch and transfer of risk

The risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our works for the purpose of despatch, irrespective of who bears the freight costs. This also applies to free delivery. If the dispatch of the goods is delayed for a reason for which we are not responsible, the risk shall pass to the Buyer upon notification of readiness for dispatch. The same shall apply if we make use of a right of retention.


5. delivery period

  1. Agreed delivery dates are non-binding unless expressly agreed otherwise in writing. If a binding delivery period has been agreed, this period shall be extended appropriately in the event of force majeure (traffic congestion and obstructions, lack of means of transport, strikes, war). If a binding delivery period is exceeded by more than 4 weeks, the buyer is entitled to withdraw from the contract after the expiry of a reasonable grace period of at least 10 days. The grace period must be set in writing or in text form. Withdrawal from the contract must be declared in writing or in text form. The right of cancellation can only be exercised by the buyer within one week of the expiry of the grace period.
  2. The prerequisite for compliance with the delivery time is the timely fulfilment of the contractual obligations assumed by the customer, in particular the clarification of all technical questions as well as the handover of all documents required for processing the order and the availability of all information required for the execution of the order.
  3. Furthermore, in the event of a delay for which we are responsible, the purchaser shall only be entitled to assert further rights if a grace period of at least three weeks set by him after the occurrence of the delay has elapsed without result.
  4. Non-fulfilment of the obligations by the customer excludes default on our part.


6. cancellation of the contract by the customer

  1. If the due date of delivery falls in a period in which we are prevented from fulfilling the contract due to force majeure, industrial action or delivery difficulties of our suppliers or similar, the customer may withdraw from the contract after setting a reasonable grace period of at least four weeks if the maintenance of the contract is unreasonable for him.
  2. In these cases, the assertion of claims for damages due to non-fulfilment is excluded.
  3. If we have not fulfilled the contract within a period of two months after removal of the obstacle to performance within the meaning of clause 6.1, the customer may withdraw from the contract.
  4. We reserve the right to withdraw from the contract in the event of an impediment to performance referred to in clause 6.1 if the maintenance of the contract represents an unreasonable hardship for us.


7. compensation for damages

In cases of premature cancellation of the contract by the customer other than those mentioned in clause 6 or in the event of justified cancellation by us, for example in the event of default of acceptance by the customer, we shall be entitled to liquidated damages in the amount of 15 % of the order value, unless we can prove higher damages or the customer can prove lower damages.


8. refusal of acceptance

If the buyer refuses to accept the goods, we may set a reasonable grace period for acceptance of the goods. If the buyer has not accepted the goods within the period of grace set, we shall be entitled to withdraw from the contract and to claim damages for non-performance. Section 7 of our General Terms and Conditions shall apply to the assessment of the amount of damages.


9. storage costs

  1. In the case of blanket orders, the finished goods are initially stored free of charge. If the finished goods are not accepted within one year, calculated from the date of the first part delivery, we will charge storage costs. If the first partial delivery is not made, we will charge storage costs from the time we have requested the buyer in writing to accept the goods, setting a deadline of two weeks.
  2. The goods still in stock will be delivered to the buyer. In addition to the storage costs, an invoice shall be issued for the goods and the other services rendered and semi-finished products manufactured by us up to this point in time.


10. special conditions

  1. Cardboard products
    Minor deviations in the dimensions that occur due to the nature of the cardboard and its processing cannot be used as grounds for complaint. Nor can complaints be made about customary weight deviations of 5 % upwards or downwards or excess or short deliveries of
  • 25 % for deliveries of up to 500 units
  • 20 % for deliveries of up to 3000 units
  • 10 % for deliveries over 3000 units
  1. Printed products
    Excess or short deliveries of up to 25 %, colour deviations, technically necessary changes to the print status and other production-related deviations are unavoidable and cannot be objected to.
  2. Miscellaneous
    We shall not be liable for minor counting errors or selection defects or weight loss or other changes in the condition of the goods from the time of loading. During production, the occurrence of a relatively small number of defective goods is technically unavoidable and a proportion of up to 3 % of the total quantity is not objectionable. The films and moulds made available to us by the Buyer for the execution of an order shall be stored properly and free of charge by the Seller. However, they must be insured by the buyer himself against fire, water and storm damage etc. No insurance cover is provided by insurance policies taken out by us. Any liability of the seller for damage to films and moulds stored by him is excluded, unless the damage was caused by gross negligence or intent on our part.


11. reservation of title

  1. All deliveries are subject to retention of title. The delivered goods shall remain our property until the purchase price and all our other claims against the purchaser have been paid in full (in the case of payment by cheque or bill of exchange until they have been honoured). If a bill of exchange liability is established for us in connection with the payment of the purchase price, the retention of title shall only expire when the bill of exchange is honoured by the purchaser as drawee.
  2. The handling and processing of the goods by the buyer is always carried out in our name and on our behalf. If processing is carried out with items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods supplied by us to the other processed items. The contractual partner of the user shall store the objects in the sole ownership or co-ownership of the user for the user.
  3. The buyer is obliged to inform us immediately of any access by third parties to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods.
  4. We are entitled to withdraw from the contract and demand the return of the goods in the event of behaviour on the part of the buyer that is in breach of the contract, in particular in the event of default in payment or breach of an obligation under clause 3 of this provision.
  5. The purchaser is authorised to resell the goods in the ordinary course of business. He hereby assigns to us all claims in the amount of the invoice amount which accrue to him from the resale to a third party. We accept the assignment. After the assignment, the buyer is authorised to collect the claim. We reserve the right to collect the claim ourselves as soon as the buyer does not properly fulfil his payment obligations and is in default of payment.


12. limitations of liability

  1. Liability for claims for damages, on whatever legal grounds, is excluded.
  2. The exclusion of liability does not apply if a guarantee has been given for the quality of the service or if a defect has been fraudulently concealed. Furthermore, the exclusion of liability does not apply to damages resulting from injury to life, limb or health. Furthermore, the exclusion of liability does not apply to other damages if the damages are based on a grossly negligent or wilful breach of duty by the user or its legal representative or vicarious agent. If essential contractual obligations are breached, the exclusion of liability shall not apply even if negligence has been committed; in such cases, liability shall be limited to foreseeable damage typical of the contract. Claims arising from product liability also remain unaffected by the exclusion of liability.


13. warranty

  1. If the buyer is an entrepreneur, we shall provide a warranty for defects in the goods at our discretion by repair or replacement delivery. Warranty claims are excluded for defects in the product manufactured by us which are based on print documents provided by the customer, such as setlithos, data carriers, even if these are transmitted by remote data transmission, if the buyer is an entrepreneur. Excluded from this are claims for damages in the cases of clause 12.2.
  2. If the buyer is a consumer, he shall initially have the choice of whether the subsequent fulfilment is to take the form of rectification or replacement delivery. However, we are entitled to refuse the type of subsequent fulfilment chosen if it is only possible at disproportionate cost and the other type of subsequent fulfilment is without significant disadvantages for the consumer.
  3. If the subsequent fulfilment fails, the buyer may, at his discretion, demand a reduction in payment (reduction) or cancellation of the contract (withdrawal). However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the buyer shall not be entitled to withdraw from the contract.
  4. The buyer, who is an entrepreneur, must notify us in writing or in text form of any obvious defects within a period of two weeks from receipt of the goods; otherwise the assertion of the warranty claim is excluded. Timely despatch shall suffice to meet the deadline. The Buyer shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
  5. Consumers must notify us of obvious defects in writing or in text form within a period of two months from the date on which the condition of the goods contrary to the contract was established. The date of receipt of the notification by us shall be decisive for compliance with the deadline. If the consumer fails to provide this information, the warranty rights shall expire two months after the defect is discovered. This shall not apply in the event of fraudulent intent on our part. The burden of proof for the time of discovery of the defect lies with the consumer.
  6. The warranty period for entrepreneurs is one year from delivery of the goods; in the case of contracts for work and services, the period shall commence upon acceptance. Excluded from this are claims for damages in the cases of item 12.2, for which the statutory limitation provisions apply
  7. In principle, only our product description shall be deemed agreed as the quality of the goods. Public statements, promotions or advertising do not constitute a contractual description of the quality of the goods.


14. rights of third parties/copyrights

If the execution of the order infringes the rights of third parties, in particular copyrights, the client shall be solely liable for all claims arising from this. In this respect, the Client shall indemnify the Contractor internally against all third-party claims.


15. data protection

The buyer is hereby informed that the user processes the personal data obtained in the course of the business relationship in accordance with the applicable data protection law, in particular the Data Protection Ordinance and the Federal Data Protection Act. Further information can be found in the user's privacy policy.


16 Place of fulfilment, place of jurisdiction and applicable law

  1. The place of fulfilment for all obligations arising from the contractual relationship is Bayreuth.
  2. The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be Bayreuth if the purchaser is a registered trader, a legal entity under public law or a special fund under public law. However, we are free to appeal to the court responsible for the purchaser's registered office.
  3. German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Convention) is excluded.


17. invalidity of individual clauses

If individual clauses of these Terms and Conditions of Business and Delivery are or become invalid or are amended in writing by contractual agreement, this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed to be replaced by an economically equivalent provision.

HERTEL & Co limited liability company, Bayreuth

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