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Terms and conditions of business, delivery and payment of HÜLSENFABRIK HERBSTER GMBH & CO. KG (as of March 28, 2022)

1. Validity of the conditions

1.1. Our offers as well as sales and deliveries are made exclusively on the basis of these General Terms and Conditions in their most recent version. These apply to all future business relationships, even if they are not expressly agreed again. 

1.2. Counter-confirmations from the customer with reference to his general terms and conditions of business or purchasing are hereby contradicted. Our silence regarding the customer's conditions will in no way be deemed to constitute recognition or approval. Even in these cases, our general terms and conditions apply exclusively.


1.3. Our terms and conditions only apply to merchants. 

1.4. Our terms and conditions also apply to all future transactions with the customer.


2. Offer and conclusion of contract

2.1. Our offers are subject to change and can therefore be revoked by us at any time before and two days after receipt of the customer's acceptance. 

2.2. The customer is bound to his order for a period of 14 days. Acceptance is made by us, usually through an order confirmation in text form, by fax or by email. If such a document is missing, the contract is concluded upon receipt of the delivery item by the customer. 

2.3. The information contained in our specifications is decisive for the quality of the delivery item owed by us. If we do not have any special specification of the delivery item, the content of our order confirmation is deemed to be the specification. 

2.4. The relevant technical regulations of the Federal Republic of Germany and the harmonized technical regulations of the EU apply to all deliveries and services, if available. Deviations are permitted provided the same level of safety can be guaranteed in another way. We do not guarantee compliance with regulations outside the Federal Republic of Germany and harmonized EU law. The information contained in catalogues, brochures, circulars, advertisements, illustrations and price lists does not determine the nature of the delivery item, unless this is expressly included with reference to the specification in our offer or order confirmation.


2.5. The assumption of guarantees and the procurement risk require express written agreements between the parties. The information in the specifications and the notification of delivery times do not meet these requirements. 

2.6. Advice, developments, adjustments to customer-specific needs, installation, commissioning and acceptance always require a separate agreement between the parties and are not included in the deliveries without a separate agreement. 

2.7. Changes and additions to the order lead to a corresponding adjustment of the contractual conditions. If no regulations are made in this regard, the contractually agreed prices will be proportionally increased or reduced.


3. Prices and payment terms

3.1. Unless expressly agreed otherwise, the prices apply ex works or ex branch including loading plus the statutory sales tax applicable in the Federal Republic of Germany. Unless otherwise agreed, the customer bears all other costs, such as packaging, transport, insurance, customs, etc. The decisive factor for the calculation is the delivery weight or quantity determined in our factory.

3.2. Samples, sketches, drafts, tools or sample goods requested by the customer will be charged at a fee to be agreed between the parties. Unless a fee has been expressly agreed, the usual remuneration is deemed to be agreed. The same applies to examinations and quality tests or reports requested by the customer, provided that these do not involve the determination of defects. 

3.3. The calculation is made in the agreed currency with the proviso that the parity rate of the euro applicable on the day of delivery serves as the basis for calculation. 


3.4. Payments are due for payment on the agreed payment date. If no specific payment date has been set, payments will become due upon receipt of the invoice or a corresponding payment statement. If receipt of the invoice or payment statement is uncertain, payments are due upon receipt of the delivery and service from us. Cash discounts are excluded. 

3.5. The customer cannot refuse or withhold performance due to any counterclaims or set them off against counterclaims, unless these counterclaims have been recognized by us or have been determined by a court.


4. Versions/tolerances

4.1. Production samples, proofs, drawings, etc. must be checked and approved by the customer at his own expense. The customer must point out any defects. If the products manufactured by us correspond to the production samples, proofs, drawings, etc. approved by the customer, they correspond to the contractually agreed quality at the time of transfer of risk with regard to the requirements set out in these documents. 

4.2. Unless otherwise agreed between the parties, we are entitled to over- or under-delivery by up to 10%. The quantities actually delivered are billed. Partial deliveries are permitted.


4.3. The weight tolerance is +/-8%. The relevant DIN-ISO standards are decisive for the dimensional tolerance. Specific tolerances and/or the fulfillment of special requirements for the materials always require a special agreement between the parties. Compliance with the specification agreed between the parties is decisive for freedom from defects. The specification also includes the specifications in production samples, proofs, drawings, etc. Only if there is no specification will the order be executed in accordance with the general state of the art in quality that is customary in the industry, based on any general applicable technical standards. 

4.4. Guarantee for non-staining cores is provided to the extent guaranteed by our paper and dye suppliers.


5. Delivery time, delay in delivery, non-performance and force majeure

5.1. The delivery time is the delivery date specified in writing in the order confirmation. If the customer has not provided all documents, approvals, releases, etc. to be obtained by him at least 21 days before the delivery date specified in writing, the delivery date specified in writing will be extended by the period up to which the documents, approvals, releases, etc. listed above. have been received by us in full, plus a further 21 days after receipt of these documents. 

5.2. The delivery deadline is deemed to have been met if the delivery item has left our factory before it expires or if we have informed the customer that it is ready for dispatch when it is picked up by the customer.

5.3. If we are in default of delivery for reasons for which we are responsible, the customer is entitled to demand a flat rate compensation of 3% of the delivery value for each complete week of delay, but a maximum of 10% of the delivery value in total. If the delay is due to intent or gross negligence or represents a material breach of duty, legal liability remains, although in the case of a negligent breach of duty this is limited to the foreseeable damage.

5.4. If the customer sets us a reasonable grace period after we have already defaulted, he is entitled to withdraw from the contract after this grace period has expired without result. The customer is only entitled to claims for damages due to non-fulfillment if the delay is based on intent or gross negligence or on a breach of essential contractual obligations. In cases of negligent violation of essential contractual obligations, liability is limited to the foreseeable damage.


5.5. The limitation of liability regulated above under Sections 3 and 4 applies accordingly to our executive employees, board members and vicarious agents.

5.6. Correct and timely self-delivery from us remains reserved. If we prove that we are not being delivered on time by one of our suppliers despite careful selection of our suppliers and despite concluding the necessary contracts under appropriate conditions, the delivery period will be extended by the period of delay caused by the late delivery by our supplier became. If the above hindrance lasts longer than one month, the customer is entitled to withdraw from the contract with regard to the part that has not yet been fulfilled. Claims for damages are excluded in this case. We can only rely on the aforementioned circumstances if we have notified the customer of these circumstances immediately, i.e. three working days after becoming aware of them. 

5.7. If we are prevented from fulfilling our obligation after conclusion of the contract due to the occurrence of unforeseeable, unusual circumstances that could not be averted despite reasonable care given the circumstances of the case, in particular operational disruptions, official sanctions and interventions, delays in the delivery of essential raw materials, energy supply difficulties etc., the delivery period is extended to an appropriate extent. The above regulation also applies accordingly in cases of strikes at our company or our suppliers as well as lockouts at our suppliers. If the above hindrance lasts longer than 2 months, both parties are entitled to withdraw from the contract with regard to the part that has not yet been fulfilled. In these cases, the customer’s claims for damages against us are excluded. We can only rely on the circumstances mentioned here if we have informed the customer of these circumstances three days after they occur. The notification period is extended by the period by which notification is not technically possible due to the above circumstances. 


5.8. According to Section 15 Paragraph 1 Sentence 1 of the Packaging Act, manufacturers and distributors of transport packaging (No. 1), sales and outer packaging that typically does not become waste after use by private end consumers (No. 2), sales and outer packaging, for which system participation is not possible due to system incompatibility in accordance with Section 7 Paragraph 5 of the Packaging Act (No. 3), sales packaging containing filling goods containing pollutants (No. 4) or reusable packaging (No. 5) is obliged to use used, completely emptied packaging of the same type, shape and to take back, free of charge, sizes such as those placed on the market at the place of actual handover or in its immediate vicinity in order to reuse or recycle them. 


Unless otherwise agreed, the customer assumes the take-back obligations from the seller in accordance with Section 15 of the Packaging Act and ensures the take-back and professional and proper recycling of the packaging. The costs incurred for return and recycling must be borne by the customer.


5.9. If the customer is the final distributor within the meaning of § 3 Para. 13 of the Packaging Act, he is obliged in accordance with § 15 Para .1 S. 1 Nos. 1 to 5 of the Packaging Act and their meaning and purpose.


6. Transfer of risk/insurance/shipping

6.1. The risk passes to the customer at the latest when the delivery is dispatched, even if partial deliveries are made. If shipping is delayed at the customer's request or due to circumstances for which he is responsible, the risk passes to the customer from the day we notify us that the item is ready for shipping.


6.2. The raw materials, operating materials, samples, originals and other items provided to us by the customer are stored properly. Any insurance against theft, fire, water, etc. is the responsibility of the customer, unless the customer instructs us to take out appropriate insurance, for which the customer must bear the corresponding costs. The same applies if we store goods manufactured for the customer on their behalf.


7. Notification of defects

7.1. The customer must check the conformity with the contract of the delivered goods as well as the preliminary, intermediate and main products sent for correction immediately after receipt at the destination and immediately report any defects in writing. Visible defects must be reported to us in writing at the latest within 8 days of receipt of the goods; Otherwise the assertion of warranty claims is excluded. Defects that are not recognizable even after a thorough inspection must be reported to us immediately after they are discovered. In the case of failed samples, the goods must be inspected within one week of receipt of the failed sample. If the goods delivered by us correspond to the standard sample released by the customer or to the preliminary and intermediate products not objected to by the customer, then the goods correspond to the agreed quality. The same applies to all other releases from the customer for further production. 

7.2. When assessing complaints, the agreed specification and the agreed quantity and quality tolerances (see 4.2 and 4.3), any failure samples or other release declarations are of primary importance. If there is no corresponding above definition or specification, the relevant DIN standards apply.


7.3. In the case of larger deliveries of similar goods, the entire batch delivered can only be returned as defective if the defects were identified using a sample size according to DIN ISO 11093-1. The acceptance limits are as follows: 

5 samples (= 5 sleeves) acceptance number 1 

10 samples (= 10 sleeves) acceptance number 2 

20 samples (= 20 sleeves) acceptance number 4


If more defective products are found than the acceptance number indicates, a complaint can be made. 


8. Warranty for defects

8.1. Deviations from the quality of the raw and auxiliary materials cannot be objected to as long as they correspond to the usual qualities of the paper and cardboard producing industry. The differences between the proof and the edition due to the printing technology are also not defects. 

8.2. If the delivery item is not free from material defects that impair its suitability for the use stipulated in the contract or if we have assumed a guarantee for certain characteristics, we must, at our discretion, remedy the defect or deliver a delivery item free of defects. 

8.3. If the repair fails after an unsuccessful second attempt due to the same defect, the customer can choose to withdraw from the contract or reduce the remuneration. Liability for any claims for damages and limitations of liability due to material defects are conclusively regulated in Section 10 of these terms and conditions.

8.4. If we decide to carry out repairs, we will bear the costs required for the repairs. This reimbursement of costs does not include expenses incurred because the delivery item was moved to a location other than the customer's delivery location. 

8.5. The customer has no claims for material defects: 
- in the event of defects caused by improper handling or overuse by the customer or his customers; 
- for the suitability of our goods for a specific purpose, if the specific possible use does not arise from the order confirmation or from written instructions enclosed with the goods, or the suitability for a specific contractual purpose has not been expressly confirmed by us; 
- for lack of light fastness, changeability and deviation of color, for insufficient bonding, rubber coating, painting, impregnation, shrinkage, stretching or moisture absorption, insofar as this lack of quality cannot be recognized despite proper inspection of the materials used;
- if our goods are stored or processed improperly; 
- when our goods are used multiple times. The goods are intended for one-time use only.


8.6. If it turns out that the defect is due to a circumstance that does not oblige us to provide a warranty for material defects, the customer who makes a claim against us because of this defect must reimburse us for all costs incurred as a result. 

8.7. If the delivery items are used items, all claims for material defects are excluded. The liability for any claims for damages and the limitations of liability for used items are conclusively regulated in 10. of these terms and conditions. 


9. Violation of industrial property rights and copyrights

9.1. If claims are made against our customers by third parties due to our deliveries and services due to the violation of industrial property rights, copyrights or competitive ancillary copyrights, the customer must grant us a reasonable period of time to remedy the legal defect, usually one month. There is no violation of industrial property rights and/or competitive ancillary copyrights by us if the owner of the property rights/copyrights grants us the right to grant our customer the use of the delivery items for the contractual purpose within the reasonable period of time set by the customer. 

9.2. The customer has only provided proof of the violation of property rights, copyrights or ancillary copyrights under competition law once a legally binding judgment has been issued against him in this regard. This regulation does not affect the customer's right to notify us of the dispute.


Liability for violations of property rights/copyrights or commercial ancillary rights is governed by Section 10 of these terms and conditions. The right to withdraw remains unaffected by the limitation of liability regulated in 10.


9.4. The customer is responsible for checking whether the documents provided by the customer violate the rights of third parties, in particular copyrights and industrial property rights. If a claim is made against us because of the use, exploitation or reproduction of the documents and/or templates provided by the customer, because of the violation of copyrights or industrial property rights and/or because of the violation of the law against unfair competition, the customer must contact us to assist us in defending against this infringement and to reimburse us for any damages, including legal fees and litigation costs, that we incur as a result.

10. Limitation of Liability and Statute of Limitations

10.1. We are only liable for damage due to defective delivery, damage caused by the delivery item to the customer's legal interests, breach of duty, violation of protective obligations and liability for legal defects in cases of intent or gross negligence. This limitation of liability does not include liability under the Product Liability Act, due to injury to life, body or health or due to culpable violation of essential contractual obligations. However, in the case of damage caused negligently, the amount of damages due to the breach of essential contractual obligations is limited to the damage that was foreseeable at the time the contract was concluded and was typical for the contract. Liability for delay and non-fulfillment is not included in this regulation. 

10.2. Claims for damages due to liability for material and legal defects expire one year after delivery of the delivery item to the customer. Claims for damages due to the violation of protective obligations that are not covered by the liability for material and legal defects expire within one year from the end of the year in which the claim arose, the customer became aware of the circumstances giving rise to the claim or without gross negligence should have occurred, but at the latest within the deadlines of §§ 195, 199 BGB. The above shortening of the limitation periods for material and legal defects as well as other breaches of duty does not apply to claims for damages based on gross negligence or intent, a responsible breach of essential contractual obligations as well as injury to body, life, health and freedom or claims for damages under the Product Liability Act .


10.3. The above limitation periods also apply to the liability of our executive employees, organs or vicarious agents.


11. Retention of title security

11.1. We reserve ownership of the delivery items until all payments from the business relationship with the customer have been received. The retention of title also extends to the balance if we include claims against the customer in current invoices (current account reservation). If the customer behaves in violation of the contract, in particular in the event of late payment, we are entitled to withdraw from the contract (case of liquidation) and to demand the return of the reserved goods and to use them. The proceeds from the sale must be offset against the customer's liabilities - less any costs incurred.

11.2. The customer is obliged to treat the delivery items subject to retention of title with care; In particular, he is obliged to adequately insure them at their new value against fire, water and theft damage at his own expense. 

11.3. In the event of seizure or other interference by third parties with these reserved goods, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with Section 771 ZPO. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with Section 771 ZPO, the customer is liable for the loss we incur as a result. 

11.4. The customer is entitled to resell the delivery items in the ordinary course of business; However, he now assigns to us all claims in the amount of the final invoice amount agreed with us (including VAT) that arise from the resale against his customers or third parties, regardless of whether the delivery items were resold without or after processing are. The customer is authorized to collect this claim even after the assignment. Our authority to collect the claim itself remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the agreed proceeds, does not default on payment and, in particular, no application has been made to open insolvency proceedings or payments have been suspended. However, if this is the case, we can demand that the customer inform us of the assigned claims and their debtors, provide all the information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment. 


11.5. The processing or transformation of the delivery items by the customer is always carried out on our behalf. The customer's expectant right to the delivery item continues with the converted item. If the delivery item is processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the objective value of our delivery items to the other processed items at the time of processing. The same applies to the new item created through processing as to the delivery items delivered under reservation. 

11.6. We undertake to release the securities to which we are entitled at the customer's request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 50%. It is our responsibility to select the securities to be released. 


12. Property rights/withdrawal

12.1. The printing documents provided by us as well as drafts, drawings, clichés, films, plates, etc. remain our property even if the customer has only reimbursed a proportion of the costs for these. In these cases, however, the customer is entitled to reimburse us for the share of the costs incurred in order to acquire ownership of the above items.


12.2. After completion of the order, the customer is obliged to immediately take back the documents and/or work equipment provided to us that are his property or have become his property. If we request the customer to take it back and the customer does not comply with this request within 4 weeks of the date of the letter of request, we are entitled to destroy these documents and/or work equipment. Unless we request collection, we are entitled to destroy these documents and/or work equipment after a period of 6 months after completion of the order. 


13. Place of performance, applicable law, place of jurisdiction, partial invalidity

13.1. The place of fulfillment for deliveries and payments is our headquarters in Schopfheim/Baden.


13.2. The law of the Federal Republic of Germany applies to these general terms and conditions and the entire legal relationship between us and the customer, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). 

13.3. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the Schopfheim/Baden court responsible for our registered office and, at our discretion, also the customer's place of jurisdiction.


13.4. Subsidiary agreements, reservations, changes and additions are made in writing. 


13.5. Should a provision of these General Terms and Conditions be or become ineffective, this will not affect the effectiveness of all other provisions. If other agreements within the framework of the collaboration between us and the customer are or become ineffective, the effectiveness of all other agreements remains unaffected. In such a case, the invalid provision must be interpreted or supplemented in the sense that the economic purpose intended by the invalid provision is achieved in a legally permissible manner.

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