General Terms and Conditions of Bagobag
General – Scope of Application
Our sales terms and delivery conditions apply exclusively; we do not accept contrary or opposing conditions to our sales terms and delivery conditions unless we have expressly assented to them in writing. Our sales terms and delivery conditions shall also apply if we render our service to the purchaser without any reservation in knowledge of contrary or opposing sales terms and delivery conditions of the purchaser. Our sales terms and delivery conditions apply also for all future business relations with the purchaser.
Contracts and Offers
Prices are net prices and do not include VAT, which generally must be added according to the currently applicable statutory rate.Offers are calculated based on the values in the inquiry or customer specifications.
The seller reserves the right to adjust prices accordingly should the aforesaid prove to be incorrect at the conclusion of the contract or due to samples being submitted at a later date.Unless deviating agreements have been confirmed in writing by the seller, concluded contracts shall, as a matter of principle, be subject to these terms and conditions.
In a current business transaction, these terms and conditions shall also be valid in cases where no written offer has been made or a confirmation of order exists. This is also applicable in the case that the buyer has knowledge of the seller's terms and conditions of trade from prior business transactions.
The seller's current price lists shall be valid as a matter of principle, if the bagobag GmbH price lists have been taken as a basis for the conclusion of the contract, even in such cases where the buyer has not requested these before ordering and thus has no knowledge of their contents.
Verbal agreements or those made by telephone are only binding if they have been confirmed in writing by the seller. This generally occurs through provision of a written offer in the form of an email, letter, or fax.
In the case of foreign transactions that have not been completed and where the foreign currency has in the interim period been devaluated, the seller reserves the right to adjust the contract in such a way as to bring the € value of the goods in line with the value valid at the time of the conclusion of the contract (before devaluation).
E-mail communication shall be recognised reciprocally as being legally effective without requiring an electronic signature in accordance with § 126a German Civil Code. This is, however, not applicable to the termination of contracts nor to substantial changes to a contract. Changes shall be regarded as substantial if they change the scope of the contract by at least 30% or if the goods that have been ordered are to be replaced by others. In the aforesaid cases the buyer's written confirmation is required to achieve legal effectiveness.
The assumption of guarantees requires an express written agreement in which the kind and scope of the guarantee is defined.
All prices are net prices, plus legally required VAT in Germany.
Delivery of Artwork
If the artwork necessary for your contract is no longer in your hands or is not currently available to you in complete form, please tell us. We are in the position to solve every problem of this type quickly and inexpensively. Please include writing, pictures, and a diagram with measurements with files delivered.
Terms of Delivery
Deliveries occur, if no other written agreement exists in the offer, at the account and risk of the consumer. Generally, when shipping via ship the shipping costs up until arrival in harbor are included in the given price. Shipments which occur via air cargo are treated differently. Freight costs within Germany or Europe or somewhere else are always the responsibility of the consignee if not otherwise specified and may be billed subsequently. Even in the case of contracts below a possible agreed upon shipping cost limit, the choice of delivery type and route remains the responsibility of the seller according to his best judgment if no other agreement exists, without liability for the quickest route or cheapest shipping.
Free shipping is provided in every case only via truck and only to a customer's address in the Federal Republic of Germany and not to further EU countries, which require a written arrangement and are not free.
If free shipping is agreed upon without the shipment having been provided free of charge by the seller, the customer should provide the seller the freight document and proof of reception of the goods and shall then receive a freight reimbursement as compensation.
If goods from the seller's stock are held under the exclusive direction of a customer or are sold for the purpose of manufacturing without a shipping agreement (make-and-hold orders), the customer may decline within the agreed upon maximum period. After it has elapsed, immediate delivery may occur without notice by the seller.
With deliveries on Euro pallets, the customer must return an equal number of Euro pallets as exchange. If no Euro pallets are returned, a bill will be provided according to the conditions current at the point of our delivery.
After a customer or his agent signs the bill of delivery, the shipment is considered to have been accepted as complete and correct, even if it is only accepted with qualifications.
In the case of default of acceptance of the customer, he must reimburse the seller for any expenditures incurred. In the case of an unsuccessful appointment, the seller is authorized to either order an appropriate deadline for acceptance of the shipment in another manner or to redeliver to the customer at an appropriate new appointed time. In the case of default of the debtor or default of acceptance, the liability for potential degradation or ruin becomes the responsibility of the customer.
The delivery deadlines named by the seller are fundamentally non-binding.
If fixed deadlines for delivery are expressly agreed upon, the delivery period begins on the day the acknowledgement of order or acceptance of order is sent. If the customer demands subsequent changes which influence manufacturing time, the delivery period begins anew with the customer's confirmation of the changes.If the seller falls into default with the delivery, the rights of the customer are restricted to withdrawal from the contract; this is only allowed, however, if the agreed upon delivery period has been exceeded by more than 1/3, and at least 5 working days.Insofar as goods are not manufactured by the seller itself, it does not fall into default before it receives them.
Additionally, the seller can be relieved of the duty to fulfill the contract if the goods included in it are not deliverable, insofar as the seller immediately informs the customer of the unavailability of the goods and immediately reimburses any consideration already provided by the buyer.
Defective or Missing Deliveries
The duties of the customer to examine and the requirement to give notice are determined in accordance with §377 HGB.After successful use or manufacturing of the delivered goods by the customer, the seller is entirely relieved of liability.In the case of missing or defective goods, the customer may only demand a lessening of the sales price or delivery of goods which are complete or not defective against return of the delivered goods, to the exclusion of all other claims. The seller determines whether the sales price is to be lessened or goods free from defect are to be shipped in any given case. The seller can refuse supplementary performance in accordance with the law. The customer must allow an appropriate deadline when demanding supplementary performance. Before that deadline, the seller must be given the opportunity to assess the indicated damages at a place named by him or on site. The seller has the right to retrieve the goods as well as the right to determine the place of examination of defects.
Insofar as goods are not manufactured by the seller itself, the seller is only liable within the framework rights in relationship to the primary supplier of product.
The seller can demand an appropriate extension of the delivery deadline or withdraw from the contract completely or in part insofar as it is not able to adhere to the delivery deadline or to provide delivery at a reasonable later time for reasons which lie outside of its sphere of influence (i.e. restrictions in raw materials, strikes, damages to machinery, natural catastrophes, fire, sub-contractor is unable to deliver).
The seller must immediately inform the customer of such circumstances and reimburse any considerations provided.
Terms of Payment
In so far as no contrary agreed terms of payment is reached, payment of 50% of the calculated price is due after transmission of printing approval. The other 50% at the time of seller's readiness to dispatch goods. If the customer proves that he received no bill within 3 days after creation of an order, the deadlines increase accordingly.
If a cash discount agreement exists with the customer, a discount is only authorised if no other bill is open at the time of expiration of the discount agreement whose payment deadline has been exceeded by 14 days.
In the case of violation of the payment period, the seller has the right to demand default interest of 5% over the base lending rate.
Agreed upon discounts, bonuses, or shipping reimbursements are omitted in the case of legal or extra-legal settlement proceedings, insolvency, or default of payment (§ 286 BGB) The same legal consequences result on the 15th day following the due-date of the bill.
Other methods of payment than cash payment, transfers, or checks are only accepted according to explicit agreement. The costs for taking exchanges or discount charges are the responsibility of the customer. These are to be initially paid by cash. Bank bills are not accepted. A payment only counts as completed if the seller has access to the sum. In the case of check payments, the payment only counts as completed if the check has cleared after immediate submission.
In the case of multiple requests, the seller has the right to charge the payments of the customer in the order they are due. The debtor's right to determine according to § 366/1 BGB is in this respect rejected.
Reservation of Proprietary Rights
Goods delivered (=reserved goods) remain entirely the property of the seller until complete payment is received.
The customer has the right to dispose of and/or use the goods within the framework of normal business operations, as long as his account is not in default. In that case, the reservation of property rights is replaced by the claim resulting from resale. In the case of manufacturing (§ 950 BGB), the new product replaces the delivered goods. In the cases of bonding (§ 947 BGB) and mixing (§ 948 BGB), the seller retains joint ownership at the level of the percentage corresponding with the value the goods have at the time of bonding (extended reservation of property rights).
The extended reservation of property rights as well as surrogates taking its place are only forfeited if all demands of the seller relating to the business relationship have been met (current account reservation). If the value of the security collateral exceeds the whole demand of the seller by more than 20%, the seller is obligated to clear the customer to this extent.
As long as the reservation of property rights exists, the customer is authorised neither for forfeiting nor security transfer of title. If the customer acts contrary to this and third parties receive credulous rights to the property of the seller acquired under reserve, the customer is obligated to provide the seller with restitution for damages.
In the case of payment with check or exchange, the property only transfers from the seller to the customer after credit entry.
Indemnification of the Seller
If the the customer experiences problems of liquidity or if the customer's bill falls into arrears, the seller has the right to demand immediate payment of all open bills, including those which are not yet due, and to demand cash payment for all outstanding deliveries before delivery of goods.
Before complete payment of invoice amounts due including default interest, the seller is not obligated to provide any further deliveries from any current contracts. Any violations of delivery time agreements which may result do not entitle the customer to withdraw from the contract or to demand restitution of damages.
The right of the customer for compensation is restricted to undisputed and legally binding counter claims. Furthermore, the customer does not have the right to withhold or reduce payment in the case of a claim on delivered goods for bills due in relationship to other deliveries until the situation is cleared.
Please see the legal requirements relating to incidental tariff rates.
Other Claims for Damages
In the case of non-performance of contractual accessory obligations, the liability of the seller is restricted to deliberate acts and gross negligance.
In other cases, the seller is only responsible for restitution of typically foreseeable damages and not for further lost profit, consequential harm caused by a defect, or production interruptions.
This mitigation of liability is also in effect for tortious liability as well as in aid of the fulfillment and assisting personnel of the seller.
Claims for damages, whether they are based on material defects or not, and for which a limitation under the statute of limitations is permissible, lapse within one year after the end of the calendar year in which the claim came into being and in which the aggrieved party demanded disclosure of the motivations of the claim or could have demanded them without gross negligence.
Intellectual Property Rights and the German Recycling Management Act.
In the case of use of samples and printing artwork of the customer, he retains responsibility that no copyright or intellectual property rights of third parties are violated. In accordance with this, he must also hold the seller harmless and reimburse the seller for any third-party claims. If industrial property rights are accorded to the seller during the process of development and completion of a contract, these are not sold along with the goods sold.
If the customer violates the terms of the German Recycling Management Act or the German Packaging Ordinance and if the seller is held responsible in relation to the violation, the customer is liable to reimburse the seller for all demands adjudicated against it as well as all costs related to these procedures. If a customer violates the laws and regulations of other states which correspond to the German Recycling Management Act or the German Packaging Ordinance, and if the seller is held responsible in relation to the violation, this provision is equally binding.
The goods delivered by the seller must include a copy of the company's legal details.
In printing contracts, the the accrued rate and cliché costs, sample production, and start-up costs like proofing are included in the bill, even in cases when the contract is not to be issued later.
The artwork provided by the customer including drafts, drawings, clichés, films, gravure cylinders and plates remains property of the seller if the customer pays proportional costs. If the customer pays the entire costs, he has the right to demand return of any existing and aforementioned artwork.
Furthermore, the seller reserves the right to make some deviations from set colour specifications, since deviations in colour are unavoidable when using some printing processes for technical reasons; this is also the case with varying handle materials such as paper and plastic.
In the case of plastic products, the seller cannot take any responsibility for the migration of additives or similar migration processes or for the consequences which result from them. This does not affect demands for restitution because of gross negligence or deliberate acts.
The seller uses commercially available printing inks for printing. If special requests, like for example light stability, etc. are made, the purchaser must indicate this in writing at the time of the creation of the contract.
In the case of encryption or numbering, the graphics must be agreed upon with the contractor in accordance with technically determined manufacturing capabilities. The purchaser is responsible for the correctness of the code design and placement. The seller takes no responsibility for provided encryption patterns. No guarantee of readability at the cash register will be given due to the diversity of reading technology available.
Over- and Under- Deliveries, Marginal Damages
In all manufacturing, the contractor has the right to over or under deliver by up to 10% of the ordered amount (In the case of orders made by amount (orders under 50,000 pieces) and of collected editions with printing changes within the order, as well as with orders by weight (for weights under 500kg) the tolerated margin of amount is up to 20% of the ordered amount). The delivery is completed according to a calculation of the actual quantity delivered.
When manufacturing paper and plastic packaging, a relatively small number of defective goods are technically unavoidable and may not be rejected if they comprise up to 5% of the entire amount, whether the defects occur during finishing or printing. Defects of one part of a delivery are not grounds for rejection of the entire delivery if it is possible to separate perfect and defective goods with reasonable methods, or if the provider assumes responsibility for the costs of these defective goods.
Deviations in size of +/- 5 % do not entitle the customer to claim damages for defective goods. The variation in material thickness with paper is +/- 5 %. With synthetics, the following ranges of tolerance are in effect:
Laminate thickness, material thickness range of tolerance:
< = 15 µm +/- 25 %
15 µm < 25µm +/- 15 %
> 25 µm +/- 13 %.
A margin of error of up to 3% is generally allowed.
Variations in the surface finish, color, purity and physical values are not to be avoided and therefore do not entitle the customer to a complaint.
The customer entitles the seller to revise the files related to this business relationship or received in relationship to it, whether these originate from the customer himself or from a third party, according to the German Data Privacy ActIf one of these conditions of the existing requirements is wholly or partially ineffectual, the validity of the remaining stipulations is not affected.
The regulation which follows in a legally operative manner for the intended commercial purpose takes its place.
These terms of business are binding for the customer as soon as he has read them or has been given the opportunity to read them. The current version is generally relevant. If this has not yet been registered by the customer and he has also had no opportunity to demand opportunity to read it, the version of his state of knowledge then takes its place.
If the orderer cancels the contract without bagobag GmbH suffering any liability, the services performed by us must be proportionally calculated and paid by the orderer. In the case of services not yet performed, we are entitled to a flat rate compensation of 15%, except in the case that the contract is canceled for a good cause. We reserve the right to prove a higher or lower level of damages.
Place of Fulfillment, Place of Jurisdiction, and Applicable Law
The place of fulfillment and place of jurisdiction for deliveries and payments (including checks and actions on a bill) as well as all other disagreements which may result between the contractual parties from the contracts concluded between the parties is the business location of the seller (Berlin, Federal Republic of Germany).
The laws of the Federal Republic of Germany apply exclusively.
The applicability of the UN agreement on contracts in international trade as well as possible standardized laws governing international trade of goods and chattels is excluded.