General Terms and Conditions

 General Terms and Conditions of FRESH!PACKING GmbH

1. Scope
1.1 For all mutual claims arising from and in connection with the conclusion of a contract between business customers who are not consumers within the meaning of § 13 BGB, these General Terms and Conditions always apply in the version valid at the time the respective contract was concluded.
1.2 Our general terms and conditions apply exclusively; We do not recognize conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our general terms and conditions also apply if we carry out the delivery without reservation in the knowledge of conflicting or deviating conditions of the customer.
1.3 Our terms of sale also apply to all future transactions with the customer.

2. Subject of the contract, conclusion of the contract
2.1 The order comes about when Fresh!Packing GmbH accepts the customer’s order. The customer will be informed about the conclusion of the contract either by a confirmation from us or at the latest by the execution of the delivery of the ordered goods.
2.2 Our delivery obligations are subject to the correct and timely delivery to ourselves, unless we are responsible for the incorrect or delayed delivery to ourselves.
2.3 All descriptions, data and illustrations of the items listed are non-binding. We reserve the right to make changes to the design, deviating conditions are not valid unless we have expressly agreed this. The information on the properties of the products is based on our own experience and does not represent any binding promised features. Due to the large number of influencing factors, customers must check the suitability of the products for their respective purposes themselves. Fresh!Packing GmbH assumes no liability for any damage that may result from this.

3. Prices
3.1 All prices are net prices and do not include the statutory value added tax. The prices do not include costs for packaging, transport and other fees. These will be calculated and shown separately if necessary. Prices are subject to change.
3.2 Clichés, tools, other aids and custom-made products for the customer shall be borne by the customer unless otherwise agreed in writing. The customer does not acquire ownership of these items, nor are we obliged to hand them over to him.

4. Terms of Payment
4.1 The goods are paid for on account. The customer undertakes to pay the invoice amount within the payment period stated in the respective invoice.
4.2 Payments for partial deliveries must be made in accordance with the invoice. If the payment period is exceeded, the customary interest on arrears will be charged.
4.3 Offsetting against claims other than those that are undisputed, legally established, ready for a decision or recognized by us is excluded. The customer is only authorized to exercise a right of retention insofar as his counterclaim follows from the same contractual relationship.
4.4 If the customer has not paid despite a prior reminder, all claims from the business relationship, namely main and ancillary claims including other claims from a current account balance, become due immediately.
4.5 If the customer becomes aware of unfavorable financial circumstances, payments for deliveries already made are due immediately. In this case, we can make future deliveries dependent on prior payment of the purchase price for these deliveries.

5. Delivery and Shipping
5.1 Unless otherwise agreed, the choice of shipping route and type is at our discretion.
5.2 In the event of a delay in delivery that was not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a flat-rate compensation for delay in the amount of 3% of the delivery value, but no more than 15% of the delivery value.
5.3 We are entitled to make partial deliveries and partial services if these are of interest to the customer according to the purpose of the contract and the customer does not incur any significant additional expenses.

6. Acceptance and transfer of risk
6.1 The risk of accidental loss and accidental deterioration of the goods passes to the customer upon handover, in the case of mail-order sales upon delivery of the goods to the forwarding agent, carrier or other persons and institution responsible for carrying out the shipment. The handover is the same if the customer is in default of acceptance.
6.2 Transport insurance is taken out at the express instruction of the customer for his account.
6.3 In the case of goods that are delivered packed on Euro pallets, the Euro pallets remain our property if they are not freight paid in advance

7. Retention of Title
7.1. We reserve ownership of the delivered item until all claims from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the customer behaves in breach of contract.
7.2 The customer is obliged, as long as ownership has not yet passed to him, to treat and store the goods in accordance with the regulations for food contact materials.
7.3 The customer is entitled to resell the reserved goods in the normal course of business. The customer already assigns to us the claims of the customer from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment applies regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.
7.4 In order to secure our claims against the customer, the customer also assigns to us such claims that accrue to him against a third party as a result of the connection of the goods subject to retention of title with property; we already accept this assignment.
7.5 In the event of seizure or confiscation, the customer must inform us immediately in writing and immediately inform third parties of our retention of title in a suitable form.

8. Warranty
8.1 We reserve the right to deviate from physical and chemical quantities, including colours, dimensions, weights and quantities, which are customary in the trade or technically unavoidable with due diligence, also compared to template samples. We are entitled to excess or short deliveries of up to 10% of the agreed quantity.
8.2 In the event of a breach of a contractual obligation, the customer is entitled to the statutory rights against us in accordance with the following regulations.
8.3 The customer is only entitled to warranty claims if he has complied with his inspection and complaint obligations according to § 377 HGB.
8.4 In the event of a justified and timely notification of defects, the customer is entitled to supplementary performance during the warranty period; We have the right to choose the type of supplementary performance, elimination of the defect or delivery of a defect-free item. If the supplementary performance fails or if further attempts at supplementary performance are unreasonable for the customer, the customer is entitled to a reduction in price or to withdraw from the contract.
8.5 If claims are made against the customer by his customer or a consumer due to a defect in the delivered goods that already existed at the time of the transfer of risk or was complained about by a consumer as the end customer, the customer’s statutory rights of recourse against us according to §§ 478, 479 remain BGB unaffected.
8.6) The customer can only assert claims for damages under the conditions regulated in Section 10 due to a defect if the subsequent performance has failed or we refuse the subsequent performance. The right of the customer to assert further claims for damages under the conditions regulated in Section 8 remains unaffected.

(6) Claims against us due to defects are only available to the customer and are not assignable.
(7) The limitation period for claims for defects is one year from the transfer of risk. This does not apply if the law prescribes longer periods in accordance with §§ 438 Paragraph 1 No. 2 (buildings and items for buildings), 478, 479 (supplier recourse) and 634 a Paragraph 1 No. 2 BGB (construction defects) and in cases injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by us and in the event of fraudulent concealment of a defect.

9. Complaints
No liability is assumed for damage occurring during transport or at the destination. Before accepting the goods, the customer must notify the transport company of any damage or loss and notify them of a claim for damages.

10. Limitation of Liability
10. 1 We are only liable for any damage that occurs if this is based on a breach of an essential contractual obligation or on intentional or grossly negligent behavior on the part of us, our legal representatives or vicarious agents. If an essential contractual obligation is violated through slight negligence, our liability is limited to the foreseeable damage typical of the contract. An essential contractual obligation exists in the case of obligations whose fulfillment is essential for the proper execution of the contract possible or on compliance with which the customer relied and was entitled to rely.
10.2 Any further liability for damages is excluded. Liability for culpable injury to life, limb or health under the statutory provisions remains unaffected. This also applies to mandatory liability under the Product Liability Act.
10.3 Our goods are excluded from export to the USA, US territories and Canada. There is no product liability in the regions mentioned.

11. Miscellaneous
11.1 Should individual clauses of these contractual conditions be wholly or partially invalid, this does not affect the validity of the remaining clauses, unless the omission of individual clauses would put one of the contracting parties at an unreasonable disadvantage so that it can no longer be expected to adhere to the contract. The contracting parties undertake to replace the ineffective clause with another one that comes closest to the economic purpose of the ineffective regulation and is in turn effective. The same applies to loopholes.
11.2 The exclusive place of jurisdiction is the registered office of Fresh!Packing GmbH in the Federal Republic of Germany. German law applies exclusively, excluding the UN sales law.