General Terms and Conditions
General Terms and Conditions of Business of BFSV Verpackungsinstitut Hamburg GmbH
(hereinafter referred to as „Contractor”)
§ 1 Applicability
(1) All deliveries, services and offers of the Contractor shall be made exclusively on the basis of these General Terms and Conditions. These form an integral part of all contracts concluded by the Contractor with his contractual partners (hereinafter referred to as “Client”) for the services or deliveries offered by the Contractor. These General Terms and Conditions shall only apply if the Client is an entrepreneur (§ 14 BGB), a legal entity under public law or a fund under public law. They shall also apply to all future services, deliveries or offers to the Client, even if they are not separately agreed again.
(2) Terms and conditions of the Client or third parties shall not apply, even if the Contractor does not separately object to their applicability in individual cases. By placing the order, the Client agrees to the Contractor’s terms and conditions. Even if the Contractor refers to a letter that contains or refers to the terms and conditions of the Client or a third party, this does not constitute an agreement with the applicability of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the Contractor are subject to amendment and non-binding, unless they are expressly designated as binding or stipulate a specific acceptance period. The Contractor can accept orders or contracts within fourteen days upon receipt.
(2) The written contract, including these General Terms and Conditions, shall solely govern the legal relationship between the Contractor and the Client. These completely reflect all agreements between the contracting parties on the subject matter of the contract. Oral statements made by the Contractor prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract, unless the parties explicitly determine them to remain binding.
(3) Supplements and amendments to the agreed terms and conditions must be made in writing in order to be effec-tive. Except for managing directors or authorized signatories, the Contractor’s employees are not entitled to enter into deviating oral agreements. Transmission by telecommunication, in particular by fax or e-mail, shall suffice to comply with the written form requirement, provided that a copy of the signed statement is transmitted.
§ 3 Performance of the contract
(1) The Contractor shall perform the agreed services in accordance with the generally accepted standards of technology. Within the scope of professional assessment, the Contractor shall be entitled to make appropriate changes to the testing services and testing procedures. The Contractor is entitled to have individual testing services conducted by third parties carefully selected and supervised by him. Insofar as services of third parties are expressly indicated in the offer, these third parties shall, within the scope of their partial engagement, act directly for the Client, who shall authorize the Contractor accordingly to subcontract these third parties.
(2) The Client shall ensure that all test samples, documents and information required for the performance of the services are available to the Contractor in sufficient quantity, in due time and free of charge. The Client shall completely provide the Contractor with all facts relevant for the performance of its services. The Contractor shall not be obliged to check data, information or other services provided by the Client for completeness and correctness, unless there is reason to do so considering the respective circumstances of the individual case. Unless the parties expressly agree in writing on non-destructive testing, the Client is aware and agrees that the test samples may be damaged or destroyed in the course of the test or – depending on the test program – are usually destroyed. Accordingly, the Contractor shall not pay any compensation for damage to or destruction of the Client’s items resulting from proper performance of its services. If the Contractor’s own devices are damaged or destroyed or lost as a result of proper performance of the Contractor’s service without the Contractor’s fault, the Contractor shall be entitled to claim compensation from the Client by applying Sec. 670 of the German Civil Code (BGB) mutatis mutandis.
(3) The Client shall be obliged to collect and, if necessary, dispose of the provided test samples at its own expense after completion of the test. The transport and, if necessary, return transport of the Client’s goods shall take place at the expense and risk of the Client; the return transport shall, however, only be carried out at the express request of the Client. In the case of storage, the Contractor’s liability shall be limited to its own customary care.
§ 4 Prices and payment
(1) The prices shall apply to the scope of services and deliveries specified in the order confirmations or, in the absence of such, in the respective offer. All prices are in EURO plus the statutory value added tax, in the case of
export deliveries customs duty as well as fees and other public charges.
(2) The prices listed in the offers are based on testing and set-up times derived from the enquiry of the Client and the information provided by the Client. Additional or special services, in particular those resulting from missing or inaccurate information provided by the Client, from changes to the test samples or a delayed provision or collection of the test samples, shall be remunerated separately by the Client. The amount of remuneration shall be based on the Contractor’s current list of prices and services, and otherwise on Sec. 632 para 2 of the German
Civil Code (BGB).
(3) The Contractor is entitled to make the performance of the services dependent on the payment of an appropriate advance on costs and to issue interim invoices at appropriate periods according to the status of the services rendered. If, after the conclusion of the contract, the Contractor becomes aware of circumstances which are likely to considerably impair the Client’s creditworthiness, the Contractor shall be entitled to perform outstanding services only against advance payment or provision of security and to withdraw from the contract after the expiry of a deadline set for this purpose.
(4) Invoice amounts are to be paid immediately without any deduction, unless otherwise agreed in writing. The date of receipt by the Contractor shall be decisive for the date of payment. Cheques shall only be deemed as payment
after being cashed. If the Client fails to make any payment on the due date, interest shall be charged on the outstanding amounts from the due date at a rate of 5% above the base interest rate p.a.; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(5) Any set-off with counterclaims of the Client or the retention of payments due to such claims is only permitted insofar as the counterclaims are undisputed or have been legally confirmed.
§ 5 Services and Delivery; Performance Time
(1) Deadlines and dates for services and deliveries promised by the Contractor are always only deemed approximate, unless a fixed deadline or date has been expressly granted or agreed. Insofar as they are non-binding, the Contractor shall only be in default if the Client has previously set a reasonable deadline for the performance of the owed service in writing without any result. In any case, deadlines shall only run upon the complete performance of all acts of cooperation owed by the Client and, if applicable, upon receipt of an agreed advance payment. Subsequent requests for changes or delayed cooperation on part of the Client shall extend the performance periods appropriately.
(2) The Contractor may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the Client fails to fulfil its contractual obligations towards the Contractor, in particular fails to perform necessary acts of cooperation.
(3) The Contractor shall not be liable for any impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining the required official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which the Contractor is
not responsible. Insofar as such events significantly impede or preclude delivery or performance by the Contractor and the obstacle is not only temporary in nature, the Contractor shall be entitled to withdraw from the contract. In the event of obstacles of temporary nature, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the obstacle plus a reasonable initial period. Insofar as the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by an immediate written declaration to the Contractor.
(4) The Contractor shall be entitled to partial deliveries if
- the partial delivery is suitable for the Client within the scope of the contractual purpose,
- the performance of the remaining agreed services is ensured and
- the Client does not incur any significant additional expenses or costs as a result (unless the Contractor agrees to bear these costs).
(5) If the Contractor is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the Contractor’s liability for damages shall be limited in accordance with Sec. 8 of these General Terms and Conditions.
§ 6 Place of performance, conveyance of risk, approval
(1) Place of performance for all obligations arising from the contractual relationship is Hamburg, unless otherwise agreed.
(2) The risk shall pass to the Client at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Contractor has undertaken to perform other services (e.g. shipping). If the shipment or hand-over is delayed due to a circumstance caused by the Client, the risk shall pass to the Client from the day on which the delivery item is ready for shipment and the Contractor has notified the Client of such. Insofar as the Contractor’s performance requires approval, the Client shall be obliged to so approve. Defects which do not seriously impair the suitability of the performance for the contractually agreed purpose do not entitle the Client to refuse approval, without prejudice to its right to demand that these defects be remedied within a reasonable period of time. If the Client refuses approval in breach of the preceding sentence of this clause, even though the Contractor has set him a reasonable deadline for approval, approval shall nevertheless be deemed to have taken place.
(3) Storage costs after the conveyance of risk shall be borne by the Client. In the event of storage by the Contractor, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. The right to claim and prove further or lower storage costs is reserved.
(4) The test samples and other items provided by the Client shall only be insured by the Contractor at the express request of the Client and at its expense against theft, breakage, transport, fire and water damage or other insurable risks.
§ 7 Reservation of rights
(1) The Contractor reserves all rights to the services provided by him within the scope of the contractual relationship with the Client – including any property rights – until full payment of the remuneration owed by the Client.
(2) The Client may not make the services accessible to third parties, either as such or as regards their content, without the written consent of the Contractor.
§ 8 Liability for damages due to fault
(1) The liability of the Contractor for damages, irrespective of the legal basis, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this Sec. 8, insofar as fault is relevant in each case.
(2) The Contractor shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, insofar as no breach of material contractual obligations is concerned. Material contractual obligations are the obligations to inspect and deliver the test report in due time as well as advisory, protective and custodial obligations which are intended to enable the Client to use the performance owed and the delivery item owed in accordance with the contract or which are intended to protect the life and health of the Client’s personnel or to protect the Client’s property from significant damage. The Contractor’s obligation to pay compensation is limited to compensation for the foreseeable damage typical for the contract. To the same extent, the Contractor shall be liable for claims for damages due to non-fulfilment because of the absence of a characteristic guaranteed in the individual case. Apart from that, liability for property damage and financial loss is excluded. Insofar as the liability of the Contractor is excluded or limited in accordance with the above sub-sections, this shall also apply to the liability of its vicarious agents and persons employed in performing an obligation.
(3) Insofar as the Contractor is basically liable for damages in accordance with Sec. 8 para 2, this liability shall be limited to damages which the Contractor foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen with due care. Indirect damages and consequential damages resulting from defects of the delivery item are also only reimbursable insofar as such damages are typically to be expected when using the delivery item as intended.
(4) In the event of liability for simple negligence, the Contractor’s obligation to pay compensation for damage to property and further financial losses resulting thereof shall be limited to an amount of EUR 25,000.00 per event of damage, even if a breach of material contractual obligations is concerned.
(5) The above exclusions and limitations of liability apply to the same extent in favor of the bodies, legal representatives, employees and other vicarious agents of the Contractor.
(6) Insofar as the Contractor provides technical information or acts in an advisory manner and this information or advice is not part of the contractually agreed scope of services owed, this shall be rendered free of charge and to the exclusion of any liability.
(7) The restrictions of this Sec. 8 do not apply to the Contractor’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 Final provisions
(1) If the Client is a merchant, a legal entity under public law or a fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the contractual relationship between the Contractor and the Client shall be, at the Contractor’s discretion, Hamburg or the place of the Client’s registered office. In these cases, however, Hamburg shall be the exclusive place of jurisdiction for claims against the Contractor. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the Contractor and the Client shall be solely governed by the laws of the Federal Republic of Germany.
Status: April 2023