General Terms and Conditions
General Terms and Conditions
CONPRINTA GmbH & Co. KG, Göttingen
As of: June 2018
1.1 Except to the extent otherwise agreed upon in writing, the terms and conditions set out below (“TERMS AND CONDITIONS”) shall form part of every contract (“CONTRACT”) on the sale and delivery of the products described in such contract, in the sales order or in the acknowledgement of order (“PRODUCTS”) concluded between CONPRINTA GmbH & Co. KG, Luttertal 72, 37075 Göttingen, Germany („CONPRINTA“) and the respective purchaser (“PURCHASER”).
1.2 All dealings between the parties shall be in writing and no order of PURCHASER shall be binding on CONPRINTA until expressly approved by CONPRINTA. Acceptance of the sales order of the PRODUCTS by PURCHASER is expressly limited to the terms and conditions contained herein, and any additional or different terms or conditions contained in PURCHASER’S initial offer or response hereto shall be deemed rejected by CONPRINTA without need of further notice or rejection and shall be of no effect nor in any circumstances binding upon CONPRINTA.
1.3 The TERMS AND CONDITIONS, the sales order, the acknowledgement of order and the CONTRACT (to the extent of their respective existence) signed by both parties in respect of the ordered products, and any attachments and exhibits hereto constitute the entire agreement between CONPRINTA and PURCHASER with respect to the subject matter herein contained and supersede all prior agreements and communications between CONPRINTA and PURCHASER, whether oral or written or in text form.
1.4 No modification, limitation, waiver or discharge of the CONTRACT conducted between CONPRINTA and PURCHASER or of these TERMS AND CONDITIONS shall bind CONPRINTA unless in writing or in text form by a duly authorized employee of CONPRINTA.
2. Rights of CONPRINTA
2.1 The parties to the CONTRACT agree that CONPRINTA shall have the right to modify the technical specifications and data and to change design and materials of the PRODUCTS without prior notice to PURCHASER, provided that such modification or changes shall not affect the performance specifications of the PRODUCTS as represented to PURCHASER in the respective contract concluded between CONPRINTA and PURCHASER.
2.2 CONPRINTA shall have the right to subcontract all or part of the respective contract concluded with PURCHASER.
2.3 All rights to technical data, patents, trademarks and copyrights associated with the PRODUCTS sold by CONPRINTA shall remain vested exclusively with CONPRINTA.
2.4 CONPRINTA is entitled to take photos and to write reports of the PRODUCT during the start-up period and during the production for publicity purposes.
3. Prices and Terms of Payment
3.1 All prices quoted by CONPRINTA are fixed prices and on a net basis. Unless otherwise expressly agreed upon in writing, the prices exclude any value added tax (VAT) or any applicable taxes and duties payable at the place of installation of the PRODUCTS. Installation services according to paragraph 6 shall be charged separately.
3.2 All payments concerning sale and delivery of the PRODUCTS shall be due and payable in full upon receipt of the respective invoice.
3.3 The same applies to all additional payments under the respective CONTRACT concluded between CONPRINTA and PURCHASER, including charges for the installation services provided under paragraph 6 hereof.
3.4 All prices quoted by CONPRINTA are subject to adjustment due to PURCHASER’S change orders, including change in the order of quantities and delivery date, if any.
3.5 All costs for variation or modification in the design, specification, materials or drawings of the PRODUCTS or the services, or any development thereof requested by PURCHASER after the respective date of CONPRINTA’S acceptance of order or the agreement on the services, as the case may be, shall, if such variations or modifications are accepted by CONPRINTA, be borne by PURCHASER.
3.6 Objections to an invoice shall be asserted to CONPRINTA in writing within thirty (30) days from the receipt of the respective invoice. After expiry of such period the invoice shall be deemed as approved and further objections to the invoice shall be excluded.
4. Default of Payment, Set off and Right of Retention of Purchaser
4.1 PURCHASER shall be in default of payment at the latest ten (10) days after the receipt of the invoice without a formal reminder letter being required, unless default of payment occurs earlier according to statutory provisions. The calculation of default interest shall be governed by § 288 BGB (German Civil Code).
4.2 PURCHASER shall only be entitled to set off its claims against claims of CONPRINTA if PURCHASER’S claims are uncontested or have become res judicata. The same shall apply to rights of retention of PURCHASER, if existing.
5. Terms of Delivery/Transfer of Risk
5.1 Unless expressly agreed the terms of delivery are ex works Göttingen, Germany. The conditions ex works are ruled by the INCOTERMS® 2010 (International Commercial Terms of the International Chamber of Commerce in Paris).
5.2 Unless otherwise expressly agreed in writing or in text form, any indicated time of delivery shall be non binding.
5.3 The delivery obligation on CONPRINTA shall at all times be subject to timely and orderly receipt of the goods from its own suppliers.
5.4 CONPRINTA shall be entitled to make partial shipments if the nature of the PRODUCTS allow to do so. Delay in delivery of any partial shipment shall not relieve PURCHASER of its obligation to accept remaining deliveries.
5.5 Any inability to supply as a result of Force Majeure or other unforeseen incidents outside CONPRINTA’S responsibility including, without limitation, strike, lock out, acts of public authorities, subsequent cease of export or import opportunities and the reservation of timely supply from own supplies in accordance with paragraph 5.3, above, shall, for their duration and in accordance with their impacts, relieve CONPRINTA from the obligation to comply with any agreed time for delivery.
5.6 If any agreed time of delivery shall be exceeded and there shall be no incident referred to in paragraph 5.5, above, then PURCHASER must specify to CONPRINTA a reasonable cure period of minimum four (4) weeks. If CONPRINTA shall fail to meet such deadline also, then PURCHASER shall have the right to withdraw from the respective contract concluded between CONPRINTA and PURCHASER but shall have no right to seek compensation for breach of contract or default unless in cases of willful misconduct or gross negligence on part of CONPRINTA.
5.7 PURCHASER bears the risk of loss or destruction of the PRODUCTS upon and after the tenth (10th) day after written notification from CONPRINTA that the PRODUCTS are ready for pick up and delivery. In case PURCHASER requests a delay in delivery, PURCHASER assumes all risk of loss, damage and/or destruction of the PRODUCTS from the date the PRODUCTS are ready to be delivered.
5.8 If PURCHASER does not take delivery of the products within ten (10) days after notification of CONPRINTA that the PRODUCTS have arrived at the place of destination and if CONPRINTA decides to store the PRODUCTS due to delayed acceptance, PURCHASER shall reimburse CONPRINTA for all reasonable storage charges.
5.9 If PURCHASER requests any modification of the order after CONPRINTA’S acceptance, CONPRINTA shall have the right to extent the delivery time period as reasonably needed to complete PURCHASER’S change order.
5.10 If requested by CONPRINTA, packaging shall be returned to CONPRINTA’S place of business or its designated facility, free of charge by PURCHASER.
6. Installation Services
6.1 CONPRINTA shall perform such installations and set up of the PRODUCTS at PURCHASER’S facility as set forth in the respective contract concluded between CONPRINTA and PURCHASER. In the event that the parties hereto agree to have CONPRINTA provide the services to PURCHASER, and unless otherwise stipulating in writing, PURCHASER shall be obliged to provide free of charge such appliances and perform such work as necessary for the installation of the PRODUCTS hereunder, including, but not limited to, installation of circuits for computer connections, performance of masonry and caulking work, installation of appropriate industrial floors, provision of stationary safety appliances, making structural alterations on the existing buildings or appliances, installation of necessary foundation as well as implementation of fire protection and sound protection measures. All appliances and work to be provided by PURCHASER under this subparagraph shall be provided in such fashion so that no delay is caused for providing the services.
6.2 Unless otherwise stipulating in writing PURCHASER shall make available all necessary lifting devices for unloading and installation and PURCHASER’S operating personnel for the benefit of CONPRINTA’S performance of the services hereunder. If, through no fault of CONPRINTA, installation start-up is delayed, PURCHASER shall bear the resulting extra costs.
6.3 Any machines, tools or other objects of CONPRINTA on the site of installation shall be properly stored and safeguarded by PURCHASER. CONPRINTA shall be immediately informed of any loss or damage thereof. PURCHASER shall be liable for damage or loss thereof.
6.4 The delivered equipment shall be deemed accepted after all general and performance specifications have been met and all necessary installation services have been finished.
7. Retention of Title
7.1 CONPRINTA shall retain full title of all goods delivered to PURCHASER until all payments due to PURCHASER resulting from the respective CONTRACT concluded between CONPRINTA and PURCHASER have been made.
7.2 PURCHASER shall not be entitled to sell or pawn the PRODUCTS delivered to him by CONPRINTA nor transfer them to safe holding. In the event of seizure or confiscation or other intervention by any third party PURCHASER shall immediately notify CONPRINTA thereof without undue delay.
7.3 In the event of a violation of the respective CONTRACT concluded between CONPRINTA and PURCHASER by PURCHASER, in particular default of payment, CONPRINTA shall be entitled to repossession after demand for payment and PURCHASER shall be obliged to surrender the goods according to statutory law.
8. Warranty Claims
8.1 All warranty claims of Purchaser are subject to prior written notification of CONPRINTA of defects of the delivered PRODUCTS according to § 377 HGB (German Commercial Code).
8.2 In case of defective PRODUCTS at the time of transfer of risk CONPRINTA shall at its own discretion repair the defective PRODUCTS or replace them by new products free of defect.
8.3 In the event that CONPRINTA repeatedly fails to provide repair or replacement of defective PRODUCTS, PURCHASER shall have the right to withdraw from the CONTRACT concluded between CONPRINTA and PURCHASER as provided by applicable law or to claim reduction in the purchase price.
8.4 CONPRINTA shall not be liable in particular in but not limited to the following cases: unsuitable or inappropriate use of the delivered PRODUCTS, incorrect assembly or putting into operation by PURCHASER or third parties, natural wear and tear, incorrect or negligent handling, lack of required maintenance, unless CONPRINTA is responsible for the situation in question in the individual case. CONPRINTA shall also not be liable for the consequences of faulty repairs carried out by PURCHASER or a third party. The foregoing shall apply accordingly to product modifications carried out without CONPRINTA’S prior consent.
8.5 Unless not expressly mentioned above, all further warranty claims shall be excluded.
9. Liability and Limitation of Liability
9.1 Liability of CONPRINTA for damages other than to the PRODUCTS delivered to PURCHASER and regardless of its legal basis shall be limited to cases of
b) gross negligence of the owner, legal representatives or managers of CONPRINTA
c) violations of life, body, health resulting from intent or negligence
d) defects fraudulently concealed or the absence of which was guaranteed by CONPRINTA
e) defects of the PRODUCTS delivered to PURCHASER to the extent liability for damage to persons or private property is stipulated by the German Product Liability Law (Deutsches Produkthaftungsgesetz).
In cases of intentional or negligent violation of essential contractual obligations CONPRINTA shall also be liable for gross negligence of employees other than managers and for slight negligence; in the later case liability shall be limited to typical and reasonably foreseeable damages.
9.2 Any further claims for damages shall be excluded.
10. Limitation of Action
All claims of PURCHASER - regardless of the legal cause - shall be subject to a limitation period of twelve (12) months; this shall not apply to claims resulting from intent. The limitation period shall begin to run when the respective claim accrues and PURCHASER becomes aware of the circumstances giving raise to the claim or ought to have become aware of those matters or failed to become aware due to its gross negligence.
11. Trade Secrets and Confidential Information
11.1 For purpose of these TERMS AND CONDITIONS the following terms shall have the meanings set forth below:
• The term “TRADE SECRETS” shall mean and include any and all prices, conditions, designs, drawings, plans, processes, specifications, technical data, computer programs, tools, mechanism or programs known to only CONPRINTA, or to those of its clients and employees to whom they must be confided in order to be applied to the uses intended, some or all of which may arise to the level of being patentable or subject to copyrights, all as further defined under the applicable law.
• The term “CONFIDENTIAL INFORMATION” shall mean and include information not rising to the level of TRADE SECRETS and not generally known to or by a business in competition with CONPRINTA or otherwise publicly disseminated by the protected party hereto, the disclosure of which may be beneficial to a competing business or detrimental to CONPRINTA.
11.2 Except as provided for in subparagraph 11.3 below, during the term of the CONTRACT concluded between CONPRINTA and PURCHASER and for so long as PURCHASER remains in possession of the PRODUCTS and three (3) years thereafter, PURCHASER shall not disclose any CONFIDENTIAL INFORMATION of CONPRINTA to any individual or entity not a party to said CONTRACT. For such information which constitutes a TRADE SECRET of CONPRINTA as defined herein, PURCHASER’S such non-disclosure obligation shall continue indefinitely beyond the above three (3) year period for so long as the information remains a TRADE SECRET under applicable law.
11.3 PURCHASER may make available TRADE SECRETS or CONFIDENTIAL INFORMATION to its qualified employees, as defined hereinafter, to the extent that such information must be disclosed to such qualified employees to apply the TRADE SECRETS or CONFIDENTIAL INFORMATION to its intended use. A “qualified employee” shall mean any individual employed by or affiliated with PURCHASER who is bound by a valid and fully enforceable confidentiality agreement which contains confidentiality obligations substantially similar to the confidentiality obligations stated herein, prior to disclosure of the TRADE SECRETS and CONFIDENTIAL INFORMATION to such employee.
12. Data protection
CONPRINTA is collecting your personal data for the purpose of the performance of the contract to fulfill all of her contractual and precontractual duties.
The collection of data as well as the processing of data is necessary for the performance of the fulfillment of the contract and is based on art. 6 sec. 1 s. 1 b GDPR. The data will be deleted as soon as they are no longer required for the purpose of the performance, unless we are obliged to store them in accordance to art. 6 sec. 1 s. 1 c GDPR because of tax- or commercial law duties to preserve records and documentation duties or in the case that you have agreed to a longer data storage in accordance to art. 6 sec. 1 s. 1 a GDPR. A transmission of your personal data to a third party for other reasons then to fulfill the contract will not happen.
You are entitled to obtain information of the personal data which we have stored in accordance to art. 15 GDPR. Furthermore you may inspect at any time and without any reason your data and if necessary you can demand the rectification according to art. 16 GDPR and/or the erasure according to art. 17 GDPR and/ or the restriction of the processing of your personal data according to art. 18 GDPR. You can also exercise your right to data portability according to art. 20 GDPR and /or your right to object according to art. 21 GDPR and/ or revoke a once granted agreement to use your data at any time and without any reasons. Furthermore you have the right to lodge a complaint with a supervisory authority according to art 77 GDPR.
Further information regarding the subject data protection you can find on our homepage www.conprinta.com/en/privacy
If you have any questions regarding the subject data protection please feel free to contact us.
13.1 PURCHASER shall not be entitled to assign the respective contract concluded between CONPRINTA and PURCHASER in whole or in part to any third party without the express prior written consent of CONPRINTA.
13.2 No modification, limitation, waiver or discharge of the CONTRACT concluded between CONPRINTA and PURCHASER or of these TERMS AND CONDITIONS shall bind CONPRINTA unless in writing and signed by a duly authorized employee of CONPRINTA. The failure of CONPRINTA to insist, in one or more instances, on performance by PURCHASER in strict compliance with the terms and conditions hereof shall not be deemed a waiver or relinquishment of any right granted hereunder with respect to any succeeding breach of the same or other provision hereof.
13.3 Any controversy or claim rising out of or relating to the CONTRACT concluded between CONPRINTA and PURCHASER or these TERMS AND CONDITIONS shall be submitted to and finally and binding upon both parties resolved by arbitration according to the arbitration statutes of the International Chamber of Commerce in Paris (ICC). Place of arbitration shall be Paris. The language of such arbitration proceedings shall be English.
13.4 These TERMS AND CONDITIONS shall be governed by, construed, interpreted and enforced under the laws of the Federal Republic of Germany without giving effect to the rules and principles of conflicts of laws thereof and with exception of the UN-Convention on Contracts for the International Sale of Goods (CISG).
13.5 Place of performance shall be Göttingen, Germany unless expressly agreed upon in writing to the contrary.
(General Terms and Conditions of CONPRINTA GmbH & Co. KG - Status: June 2018)