General terms and conditions

of MENKE Industrie­verpackungen GmbH & Co. KG

 I.       Scope of application

These general terms and conditions are part of all the orders we place, and contracts we enter into, with suppliers and other service providers (hereinafter referred to as “Contractual Partner(s)”) with respect to deliveries of goods and services of any kind. Where ongoing business relations with merchants are concerned, the terms shall also apply to future orders/contracts regardless of the manner in which they are placed/executed (written or orally/by telephone). The Contractual Partner’s terms and conditions of sale or other general terms and conditions of business are not accepted even where we do not expressly reject them.

II.      Cost estimates; contract formation

1.     We do not pay any compensation for the preparation of cost estimates or the like. Where it becomes apparent to the Contractual Partner that the cost estimate will be exceeded by more than 10%, it shall cease work immediately (unless there is imminent danger). In addition, the Contractual Partner has a duty to notify us of this and wait for our decision with respect to any further work.

2.      We are bound by our purchase orders for a period of two weeks. They will expire thereafter if the Contractual Partner has not accepted them by then.

3.      Any derogations from our purchase orders must be clearly marked as such in the order confirmation.

III.     Drawings, models, tools

We reserve proprietary rights and copyrights with respect to images, drawings, calculations, etc. made available by us to the Contractual Partner[A1] . The drawings, etc. prepared by it on the basis of our particulars must not be used for other purposes, reproduced or made available to third parties. They must be returned to us together with the copies made available by us without undue delay upon request.

IV.     Prices, payment

1.      Unless otherwise agreed in writing in a particular instance, deliveries are to be made Delivery Duty Paid (DDP) (Incoterms 2010). The price therefore is to include, inter alia, packaging and shipping in particular. Additional demands of any type are barred.

2.      The prices agreed are fixed prices.

3.      We make payments within the agreed periods for payment. The timeliness of the payment is judged by when the payment is debited from our account.

4.      We are entitled to set off our own claims against claims by the Contractual Partner, even if our claims are in dispute. Our rights of retention cannot be limited.

V.      Delivery, passage of title, packaging

1.      Deliveries are to be made DDP (Incoterms 2010). Unless otherwise agreed, the goods to be delivered must be packaged properly, in the manner that is customary in the trade, and with the appropriate labelling. The Contractual Partner will be liable for damage resulting from deficient packaging. The Contractual Party is obliged to make the deliveries only to the receiving location specified by us. The Contractual Partner is liable for the consequences of improperly issued shipping documents.

2.      We accept partial deliveries by express agreement only. The outstanding quantity must be delivered.

3.      Compliance with the delivery date is judged by when the goods are received at the receiving location. The delivery dates arranged with us must be kept unconditionally. In the event of delay, the Contractual Partner will be liable according to the provisions of law. A delay in delivery may result in a reimbursable loss by, for example, exposing us to liability towards our customers for damages or payment of contractual penalties.

4.      Deliveries made ahead of schedule without our consent will not affect the payment deadlines associated with the scheduled delivery dates. We reserve the right to send back, at the Contractual Partner’s expense, goods that arrive too early, or to apply the prescribed delivery date as the value date.

5.      Ownership of goods that are delivered or works that are produced, if the latter are of a physical nature, shall pass from the Contractual Partner to us when they are handed over.

6.      Packaging materials from goods delivered to us must be picked up free of charge at our request.

VI.     Special provisions for purchase agreements and contracts for work and services: complaints and liability for defects; special notes regarding packaging for hazardous substances

The following provisions in this contract item apply only to purchase agreements, contracts for work and materials and contracts for work and services:

1.      The Contractual Partner warrants that the delivery item meets the statutory and contractual quality requirements and satisfies the quality and durability guarantees, that it is environmentally compatible, and that it has no material defects. In particular, the item must conform to the generally accepted rules of sound engineering practice and the safety-related requirements currently in effect.

2.      With respect to orders of packaging for hazardous substances, the packaging must comply with [A2] the German and European requirements for such products. In addition, such products must include the necessary labelling. Deliveries must also, in particular, include the relevant safety data sheets and, as applicable, additional documents.

3.      Except as provided otherwise in these Terms and Conditions of Purchase, liability for defects is based on the statutory provisions.

4.      All costs associated with the satisfaction of claims arising from defects must be borne by the Contractual Partner. This applies in particular to the costs of freight, packaging and insurance, public charges, installation and removal costs, inspections, including the costs of experts and the costs of technical acceptance checks, etc. Costs that we incur internally in connection with a search for defects, rectification or subsequent performance (including, for example, sorting work) must be borne by the Contractual Partner, such costs being measured by the actual labour costs for the employees used by us and leaving out of consideration a profit portion.

5.      In especially urgent cases in which setting even a very short grace period for rectification cannot be reasonably expected when the interests of both Parties are considered, we are entitled to carry out rectification work ourselves or to order it elsewhere. The Contractual Partner will bear the costs.

6.      Section 377 of the German Commercial Code [HGB] shall apply to purchase agreements with the proviso that notifications of defects received by the Contractual Partner within a period of two weeks of the arrival of the goods at their destination are to be deemed promptly made and therefore timely. For hidden defects, the period is two weeks from the time of detection.

7.      The limitation period for claims for defects is 36 months, calculated from the passing of risk. Any longer statutory warranty periods remain unaffected. The provisions in §§ 478, 479 German Civil Code [BGB] also remain unaffected.

VII.    Product or procedural changes

Contractual Partners with which we maintain ongoing business relationships have a duty to notify us in due time in writing if they intend to make product or process changes to products purchased by us.

VIII.   Product liability

The Contractual Party is obliged to indemnify us against product liability, including reasonable litigation costs associated therewith, resulting from an error for which it is responsible. This will apply also if its responsibility derives not from its own production but from the fact that it is a quasi-producer or importer in the European Economic Area or is otherwise primarily or secondarily liable under § 4 of the German Product Liability Act [Produkthaftungsgesetz].

IX.     Force majeure, labour disputes

Force majeure and labour disputes release the Parties from their performance obligations for the duration of the disruption and to the extent of their effects. The Parties are obliged, within the limits of what may reasonably be expected of them, to give the necessary information promptly and to adjust their obligations to the changed circumstances in good faith. We will be released in full or in part from our obligation to accept the ordered service or delivery and entitled to rescind the agreement if we can no longer utilise the delivery or service in light of economic considerations because of the delays by force majeure or the labour dispute.

X.      Liability

         The Contractual Partner will be liable according to the provisions of law. Our liability is limited according to the following provisions.

1.      We are liable in accordance with the statutory provisions if the Contractual Partner asserts claims for damages that are based on intentional misconduct or gross negligence. If no wilfully intentional breach of contract is imputed to us, liability for damages is limited to the foreseeable damage that typically occurs.

2.      We are liable in accordance with the statutory provisions if we have breached a material contractual duty by fault; in such case, liability for damages is limited to the foreseeable damage that typically occurs. A material contractual duty in this sense is defined as any duty the performance of which makes proper performance of the contract possible in the first place and on compliance with which the Contractual Partner may normally rely.

3.      Statutory liability for injury to life, body or health by fault remains on the whole unaffected; this applies also to mandatory liability under the German Product Liability Act [Produkthaftungsgesetz] or other national implementations of the European Product Liability Directive.

4.      Except as otherwise provided above, further liability for damages beyond that provided for in the present item X is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages for breach of other duties or for tortious claims.        

5.      The limitations according to the preceding paragraphs apply also if, instead of a claim for damages in lieu of performance, the Contractual Partner demands compensation for futile expenses. 

6.      In so far as our liability for damages is excluded or limited, such exclusion or limitation applies also to personal liability for damages on the part of our staff, employees, representatives and performing agents.

XI.     Other provisions

1.      The Contractual Partner has a duty to maintain customary and adequate insurance protection that covers risks to us arising from the performance of services.

2.      The place of performance for all reciprocal claims, including those arising from liability for material defects, is our registered place of business.

3.      If the Contractual Partner is domiciled in the EU or in the European Economic Area, the following applies: If the Contractual Partner is a businessman, a legal entity under public law or a special fund under public law or does not have a general place of jurisdiction in Germany, the exclusive place of jurisdiction shall be Hamburg.

On the other hand, if the Contractual Partner's registered office is located outside of the EU and the European Economic Area, all disputes arising under and in connection with the contracts concluded subject to the applicability of these General Terms and Conditions shall exclusively be settled by the court of arbitration of the chamber of commerce of Hamburg. Its decisions are final and there is no recourse to the ordinary courts. The defendant is entitled to bring a counter-claim before the court of arbitration. The place of arbitration is Hamburg. The language of the proceedings is German. The proceedings, in particular the taking of evidence, will be conducted pursuant to the Rules of the Court of Arbitration of the Hamburg Chamber of Commerce and the rules of Book 10 of the German Code of Civil Procedure (Zivilprozessordnung). Procedural principles of common law, including, without limitation, regarding the production of documents, do not apply (neither directly nor by analogy).

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4.      The Parties agree that this agreement shall be governed by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

Rev.: November 2017

of MENKE Industrie­verpackungen GmbH & Co. KG (hereinafter referred to as: “Seller”) 

I.       Scope of application

         These general terms and conditions are a component of all our offerings to and agreements with business clients with respect to product deliveries and services. Where existing business relations with merchants are concerned, the conditions will also apply to future offerings/agreements regardless of the manner in which they are made/concluded (written or orally/by telephone). The Buyer's purchasing conditions will not be recognised, even where the Seller does not expressly reject them.

II.      Offering, delivery, reservation of self-delivery, force majeure, acceptance

1. All offers made by the Seller may change, subject to prior sale, including after acceptance by the Buyer, until they have been confirmed by the Seller. The Seller will be bound to its offerings in individual cases if this has been explicitly declared in written form.

2.      Delivery periods/dates are only binding if the Seller has committed to them in writing. The delivery period will only begin when the Buyer has performed owed cooperation.

3. Delivery periods/dates are subject to correct, defect-free, complete and timely self-delivery.

4.      Force majeure and other events of any kind that delay or otherwise impede the Seller's supply or delivery of goods and that are beyond the Seller’s control and for which it is not responsible (e.g. official import and export restrictions, mobilisation, war, blockade, strike, lockout, etc.) will release the Seller from its performance obligation for as long as said events have an effect. If the Seller can foresee that such events will delay service, the Seller must inform the Buyer.  If it is no longer reasonable to expect one of the Parties to fulfil the agreement due to the delay, said Party will be entitled to withdraw from the agreement. Claims to compensation for damages on the part of the Buyer due to these circumstances are hereby barred.

5.      Other failures to comply with delivery dates/periods entitle the Buyer to rescind the agreement if it has granted the Seller an appropriate additional period [A1] of at least 4 (four) weeks without success. The extension period must be submitted in writing.

6.      The Buyer has a duty to accept the purchased goods without undue delay once the Seller has notified it that the goods are ready for collection. The Buyer will bear the shipping costs. They will be calculated in accordance with the loading station assigned by the Seller. The Seller will report the loading station to the Buyer in the notification of provision.

III.     Passing of the risk

         Risk will transfer upon contractual supply/delivery of the product by the Seller to the Buyer. In the absence of agreements to the contrary, the Buyer will bear the transportation risk.

IV.     Tolerances

1.      The Buyer must tolerate variations in the weight of the goods delivered of +/- 5% and variations in the dimensions of +/- 3% compared to the target values.

2.      The Seller is entitled to provide deliveries that exceed or fall below the quantity ordered by up to 15% with respect to custom products and up to 10% with respect to commercially available standard products. The actual quantities delivered will be billed to the Buyer in full.

V.      Storage

         The Buyer itself is responsible for ensuring that goods are stored properly and has a duty to inquire about the storage conditions that are suitable in each individual case. If the goods suffer adverse changes due to improper storage, for example if sheet steel packaging is stored outside, this does not constitute a defect. 

VI.     Refurbished packaging

         Where the Buyer buys refurbished packaging, it consciously and on its own responsibility buys packaging that is not new and which cannot be expected to meet the same requirements that apply to new, unused packaging in terms of cleanliness, smell and other aspects that were affected by the prior use. The Seller owes and shall deliver refurbished packaging of average kind and quality. The Buyer must take this into account in light of the intended use of the packaging before placing an order and, as applicable, assess the suitability of the packaging. The Buyer should contact the Seller before placing an order if there is any doubt.

VII.    Purpose of use

         Before placing an order, the Buyer must inquire on its own responsibility as to whether the packaging is suitable for its intended purpose of use.

VIII.   Liability for defects

1.      The Buyer has a duty to inspect the goods without undue delay following receipt or delivery by the Seller and, if a defect is found, promptly notify the Seller. In this context, an inspection shall be considered carried out "without undue delay” if it is carried out within two business days following receipt or delivery. Prompt notification will mean notification given within one business day following discovery of the defect. If the Buyer should fail to provide notice, the product will be considered approved unless the defect was undetectable during the examination. More precise regulations can be found in Section 377 of the German Commercial Code [HGB].

         Where the goods are sold “as seen”, the Buyer shall inspect them immediately. Any complaint brought later, regardless of its kind, is excluded. Notices of defect due to damage/defects or incorrect quantities/other shortfalls only need to be considered if they are raised right away when the goods are picked up/received and are added to the delivery note or are noted with the involvement of a railway official/freight forwarder. In this respect, all notices of defect given by the Buyer afterwards are excluded.

         Otherwise, notice of defects that are not immediately discernible must be given promptly upon discovery. Prompt notification will mean notification given within one business day following discovery of the defect.

2.      The goods complained of may only be returned with the Seller’s approval, unless the Seller has not addressed the notification of defects within 10 (ten) days.

3.      Nothing may be taken away from the defective goods/delivery nor may said goods/delivery be altered in any way without the Seller’s consent until the complaint has been resolved. The Buyer will be obliged to carefully store the defective product, keep it available for inspection, and submit a sample to the Seller upon request. The Buyer will have no claim to compensation for safekeeping or other expenses.

4.      The limitation period for material defect claims is 12 (twelve) months calculated from the time when the goods are delivered. This does not apply to claims for damages that are based on a defect of the goods. The statutory warranty period also applies to claims for damages that arise because the Seller is in default with respect to work to rectify a defect which is demanded by the Buyer and owed by the Seller. The limitation period for recovering from the supplier as provided for under Sections 478 and 479 of the German Civil Code [BGB] shall not be affected either.

5.      If the deliverable is not free of defects or if the Seller has guaranteed particular quality features, the Seller may choose between curing the defect (rectification) or delivering a defect-free deliverable. The Seller may only issue a guarantee of quality in writing.

6.      If the rectification fails repeatedly, the Buyer may choose to either rescind the agreement or reduce the purchase price. The law provides more precise regulations. 7.      If the Seller opts for rectification, it shall bear the related expenses. The Buyer will bear expenses that arise because the deliverable was brought to a location other than the Buyer’s place of business.

7.      The Buyer is only responsible for ensuring that the containers delivered are suitable for a specific purpose of use, in particular for use for specific products, where it has represented the suitability in writing in advance.

8.      Our goods are delivered as clean as possible in appropriate outer packaging. The responsibility for the final cleaning and inspection of our goods before any further use lies with the Buyer. We do not provide any warranties regarding the cleanliness or usability.

IX.     Liability

1.      The Seller is liable in accordance with the statutory provisions where the Buyer has asserted claims for damages that are based on intentional misconduct or gross negligence. If the Seller is not accused of any intentional violation of the agreement, the liability for damages is limited to the foreseeable damage that typically occurs.

2.      The Seller is liable in accordance with the statutory provisions if it culpably breaches a material contractual duty; in this event, liability for damages is limited to the foreseeable damage that typically occurs. In this context, a material contractual obligation shall mean any obligation the fulfilment of which enables the proper performance of the agreement and upon compliance with which the Buyer may ordinarily rely.

3.      Statutory liability for injury to life, body or health by fault remains on the whole unaffected; this applies also to mandatory liability under the German Product Liability Act [Produkthaftungsgesetz] or other national implementations of the European Product Liability Directive.

4.      Except as otherwise provided above, further liability for damages beyond that provided for in the present item IX is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages for breach of other duties or for tortious claims.     

5.      The limitations according to the preceding paragraphs apply also if, instead of a claim for damages in lieu of performance, the Contractual Partner demands compensation for futile expenses.

6.       In so far as the Seller's liability for damages is excluded or limited, such exclusion or limitation applies also to personal liability for damages on the part of its staff, employees, representatives and performing agents.

X.      Retention of title

1.      The Seller retains title to the delivered products until all claims arising from the business relationship with the Buyer have been settled in full.

2.      Any processing or treatment of the goods subject to retention of title by the Buyer will always be performed on behalf of the Seller, without creating any obligations for it. Ownership of the new items in their particular state of transformation or processing vests in the Vendor. If the Seller's goods subject to retention of title are processed, treated, mixed or combined with other products that are not owned by it, it shall acquire a co-ownership interest in the new item based on the share of the invoice price of the goods subject to retention of title compared to the invoice price of the other products.

3.      The Buyer may sell the goods subject to retention of title in which the Seller holds a sole or co-ownership interest in the ordinary course of the Buyer’s business; the Buyer must not pledge or assign the goods as collateral. The Buyer hereby assigns to the Seller in advance all of the claims to which it is entitled from the sale of the goods subject to retention of title or the products resulting from the processing, treatment, mixing or combination. This applies also if the products are sold for one total price with other products that do not belong to the Vendor. If, pursuant to a legal regulation, a third party has acquired ownership or co-ownership interests in the products as a consequence of the processing, treatment, mixing or combination, the Buyer hereby assigns to the Seller in advance any claims the Buyer may have against that third party. Assignments for purposes of this paragraph are made only up to the amount of the invoice price of the goods subject to retention of title. The Buyer may collect the assigned claims until such permission is revoked; the permission may be revoked at any time.

         The Vendor hereby accepts the Buyer’s assignments provided in this clause.

4. The Seller undertakes to release the collateral it is entitled to based on the foregoing provisions upon the Buyer’s request at its discretion and to the extent that its value exceeds the claims to be secured by more than 10%.

5.      If the Buyer's cooperation is required to make the retention of title effective, for example with regard to registrations that are required in accordance with the law of the country in which the Buyer is located, the Buyer shall perform such acts.

6.      If the Buyer is in default of payment, the Seller may prohibit it from disposing of the goods subject to retention of title completely or, at the Seller's discretion, in part, e.g. only with regard to selling or further processing, etc.

7.      If the Buyer fulfils the objective conditions of the duty to file for insolvency, it shall refrain from disposing of the goods subject to retention of title in any way, without specifically being requested to do so. The Buyer is obliged to inform the Vendor promptly of its inventory of reserved goods. In this case the Vendor is further entitled to rescind the contract and to demand the return of the reserved goods. If the reserved goods have been transformed, processed, intermixed, mingled or combined with other products, the Vendor is entitled to demand their surrender to a trustee; the Buyer is obliged to disclose all co-owners of the reserved goods along with their names or firm names, addresses, and co-ownership shares. The same will apply mutatis mutandis to claims that are assigned in accordance with the paragraphs above; in addition, the Buyer, without solicitation, must provide the Seller with the names and addresses of all debtors as well as the documents that constitute evidence of the claims against them.

XI.     Prices, payment, offsetting and rights of retention

1. Subject to different agreements in individual cases, the Seller has the right to pass on additional expenses that only arise after the execution of the agreement (e.g. new or increased tariffs, taxes, levies, compensatory charges or other official charges on the purchase price, increased freight costs, changes in the exchange rate, increases in the cost of raw materials) to the Buyer if these additional expenses were not foreseeable when the agreement was executed. If this leads to a price increase of more than 10%, the Buyer has the right to rescind the agreement concerning the goods affected unless the Seller waives the price increase in excess of 10% at the Buyer's request.

2.      Unless otherwise agreed, net payment must be made immediately upon receipt of the invoice without any deduction. Cheques and bills of exchange will be accepted for conditional credit only. Transfer fees, taxes on bills of exchange, discount charges and any other collection costs will be borne by the Buyer.

3.      The Buyer is only entitled to rights of set-off and retention if and to the extent that its counterclaims either offset (Section 320 of the German Civil Code [BGB]) the claims asserted by the Seller or have been determined by a court without further legal recourse, have been acknowledged by the Seller or are uncontested. Additionally, the Buyer will only be authorised to exercise a right to retention to the extent that its counterclaim is based on the same contractual relationship.

4.      In the event of default in payment on the part of the Buyer, the Seller may charge the statutory default interest in accordance with Section 288 of the German Civil Code [BGB] subject to further rights. The Seller will be further entitled to withdraw from the purchase agreement after expiry of an additional period set by the Seller of at least five business days, to demand compensation for damages due to non-performance, to demand the return of goods subject to retention of title for the purpose of valorisation for the Buyer’s account, or to collect the claims against third parties assigned to the Seller by the Buyer.

XII.    Other provisions

1.      The place of performance for all mutual claims (including those based on liability for defects) shall be the Seller’s place of business.

2.      If the Buyer is domiciled in the EU or in the European Economic Area, the following applies: The sole place of jurisdiction is Hamburg if the Buyer is a trader, corporate body under public law or legal separate asset or does not have a general place of jurisdiction in Germany.

On the other hand, if the Buyer’s registered office is located outside of the EU and the European Economic Area, all disputes arising under and in connection with the contracts concluded subject to the applicability of these General Terms and Conditions shall exclusively be settled by the court of arbitration of the chamber of commerce of Hamburg. Its decisions are final and there is no recourse to the ordinary courts. The defendant is entitled to bring a counter-claim before the court of arbitration. The place of arbitration is Hamburg; the language of the proceedings is German. The proceedings, in particular the taking of evidence, will be conducted pursuant to the Rules of the Court of Arbitration of the Hamburg Chamber of Commerce and the rules of Book 10 of the German Code of Civil Procedure (Zivilprozessordnung). Procedural principles of common law, including, without limitation, regarding the production of documents, do not apply (neither directly nor by analogy).

3.      The Parties agree that this agreement shall be governed by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

Rev.: November 2017