General sales terms and conditions of elasto GmbH & Co. KG ("elasto")
(Last update: 1 October 2021)
1.1. These general sales terms and conditions ("sales terms and conditions") apply for all business relations with customers of elasto ("customer(s)") regarding the sale of chattels ("goods" or "product(s)").
1.2. The sales terms and conditions apply only if the customer is a businessperson (Section 14 of the German Civil Code (BGB)), a legal person under public law or a special fund under public law.
1.3. The sales terms and conditions also apply for future legal transactions regarding the sale of chattels with the same customer, with no need for elasto to refer to them again on a case-by-case basis.
1.4. These sales terms and conditions apply exclusively. Deviating, conflicting or supplementary business terms and conditions of the customer only become part of the contract if and to the extent that elasto has explicitly accepted their application in writing. Silence, delivery or the acceptance of payment by elasto do not constitute acceptance.
1.5. The sales terms and conditions apply in addition to any other agreements concluded between the parties. Individual written contractual agreements concluded with the customer that conflict with the sales terms and conditions shall take precedence over these sales terms and conditions.
1.6. Material statements and notices to be issued by the customer to elasto after the contract is concluded must be in written form in order to be effective.
2.1. The representation of goods and services by elasto in the respective current advertising media does not constitute a binding contract offer.
2.2. All information (dimensions, weights, illustrations, descriptions and drawings etc.) in price lists, catalogues and other elasto advertising materials are merely approximate and non-binding for elasto. Altering the composition of the product range and changing the technical implementation and appearance are reserved. For the exact evaluation of the assured characteristics and functions as well as the binding colour of a product, elasto shall send the customer a sample on request.
2.3. The customer makes a binding offer by submitting an order to elasto. elasto is free to decide whether to accept this offer (order confirmation).
2.4. If the order confirmation issued by elasto deviates from the customer's order, the customer has to object to the deviations in writing promptly upon receipt, i.e. within 24 hours after receiving the order confirmation. Should the customer fail to review the order confirmation and to submit an objection promptly, elasto's order confirmation is deemed to be correct and binding for both parties.
2.5. A contract is concluded subject to the condition precedent of correct and timely deliveries to elasto by its suppliers. If it turns out that ordered goods are not available, the condition precedent is not met. A claim for damages is excluded in this case.
2.6. All subsidiary agreements, amendments or endorsement to this contract must be in written form in order to be legally effective. This also applies to a waiver of this written form requirement.
2.7. In case of articles with finishing, elasto shall provide the customer with a standard layout for the binding approval of the printing data and diecut. elasto assumes no liability for errors that are missed by the customer.
2.8. Should the customer subsequently request extensive changes, recomposition or other corrections compared to the submitted layout that go beyond the usual extent, the resulting additional costs shall be billed on a time and materials basis.
3.1. All prices in price lists, catalogues and other elasto advertising media are non-binding for elasto. The prices in the respective current advertising media pertain to the publication date of the respective advertising medium; price changes after this date are reserved.
3.2. All offers from elasto and the prices they contact are subject to change without notice. In particular, elasto reserves the right to make price corrections on a case-by-case basis when price adjustments are necessary due to exchange rate changes and/or the primary costs or procurement costs have otherwise changed. The customer shall receive an updated offer in case of a price adjustment.
3.3. elasto's prices are ex works and quoted in euros. VAT as required by law at the time of delivery shall be added to the prices unless information to the contrary is provided.
3.4. The costs for packaging and freight are not included and shall be invoiced in addition unless otherwise agreed.
3.5. If the primary costs or procurement costs increase after the order confirmation is issued for reasons that are not foreseeable and not within the control of elasto (in particular in case of force majeure according to points 6.2 and 6.3), elasto has the right to increase the prices according to this verifiable cost increase. The customer has a right of withdrawal if the increase is more than 10% of the agreed price. In case of withdrawal, the customer shall reimburse elasto for the material and labour costs that have already been incurred.
4.1. An invoice is issued on the day the goods are shipped.
4.2. However, elasto is free to require payment in advance of delivery, especially for new customers or in case of a negative credit report.
4.3. Invoices are sent to the customer as the invoice recipient, electronically in the form of PDF documents according to Section 14(1), (3) of the Value Added Tax Act (UStG). The customer consents to receive invoices electronically by e-mail and waives the receipt of invoices by mail. If the customer, deviating from the above, wants to continue receiving invoices in paper form, the customer shall pay a processing fee of EUR 2.50 per invoice.
4.4. An invoice is deemed to be accepted as correct and complete unless the customer reports alleged billing errors in text form within one week after receiving the invoice.
4.5. Invoices issued by elasto are due and payable immediately unless otherwise agreed in writing. If the customer does not remit payment when it comes due, elasto has the right to charge late payment interest in accordance with Sections 353, 352 of the German Commercial Code (HGB) at the rate of 5% p.a. starting on the due date. This does not exclude the right to assert an additional claim for damages caused by default.
4.6. Discounts are only granted to the extent agreed and if all payment obligations from previous deliveries are met in full and on time.
4.7. Postage, freight and packaging costs are payable without the deduction of discounts.
4.8. Should the pecuniary circumstances of the customer worsen considerably, justifying doubt of the customer's ability to pay, elasto has the right to withhold deliveries and services and to set a reasonable deadline for advance payment or the issuing of grantees by the customer, at the discretion of elasto. If this deadline passes with no effect, elasto has the right to withdraw from the contract and demand compensation.
4.9. Insofar as the customer fails to meet its payment obligations fully and in a timely manner, in particular when enforcement proceedings have been verifiably conducted to no avail, the customer has stopped making payments or an application for insolvency proceedings regarding the customer's assets has been submitted, elasto has the right to call the entire remaining debt under the contract. Furthermore, elasto has the right to demand advance payments or guarantees for all existing and future legal transactions.
4.10. elasto is authorised to assign the claims arising from the business relationship.
4.11. Offsetting against any counter-claims of the customer is only permissible when they are undisputed or legally established. Asserting a right of retention on the customer's part is excluded.
5.1. Deliveries are subject to the delivery terms and conditions according to the order confirmation.
5.2. Delivery dates and terms are only valid when they have been expressly confirmed by elasto. Delivery terms generally begin on the date of the order confirmation, but not before the obligations of the customer have been duly met. If shipment has been agreed, the delivery terms and delivery dates refer to the date of transfer to the shipper, freight carrier or other third party engaged for transportation.
5.3. If the customer requests changes to the order that affect the duration of production after the order confirmation is issued, a new delivery term begins when the changes are confirmed.
5.4. Call orders are considered firm orders and acceptance within 3 months is binding unless otherwise agreed.
5.5. Shipment is on account and at the risk of the customer unless otherwise agreed. Risk passes to the customer as soon as elasto transfers the goods to the shipper, hauler or other third party engaged for transportation. If the transfer or shipment is delayed due to circumstances within the control of the customer, risk passes to the customer when the order is ready for shipment.
5.6. elasto has the right to make partial deliveries to an extent that is reasonable for the customer. Payments for partial deliveries come due according to the agreed payment terms.
5.7. Claims of damages on the part of the customer due to delayed delivery and in place of performance are excluded in all cases of delayed delivery, even after a grace period for subsequent delivery granted by the customer. The preceding exclusion does not apply in case of intent, gross negligence, death, physical injury or the impairment of health.
5.8. If shipment or delivery is delayed by more than 1 month after notification of readiness for shipment on request of the customer, elasto has the right to bill the customer for demurrage for each partial or full month at the rate of 1% of the value of the goods. The parties to the contract are free to provide proof of higher or lower demurrage charges.
6.1. elasto is not liable for impossibility of delivery or delivery delays caused by force majeure or other events beyond elasto's control that could not be foreseen at the time the contract is concluded. This also applies in case of extraordinary events affecting sub-suppliers of elasto.
6.2. "Force majeure" means the occurrence of an event or circumstance that prevents a party from meeting one or more of its contractual obligations under the contract, if and insofar as the party affected by the impediment proves that (a) the impediment is outside the reasonable control of the party, (b) it was not reasonably foreseeable at the time the contract is concluded and (c) the effects of the impediment could not have been reasonably avoided or overcome by the affected party.
6.3. Examples of force majeure are natural disasters or extreme natural phenomena, unrest, war, terrorism, state import/export restrictions, explosions, fire, labour disputes such as strikes and contagion (including epidemics and pandemics).
When such an event subsequently results in
(a) a general or specific shortage of essential raw materials and other goods or services required for the agreed performance, and/or
(b) unforeseeable delays affecting sub-suppliers or other third parties, and/or
(c) general transportation and/or loading problems, such as port congestion or a lack of equipment (e.g. shortage of containers),
these circumstance are also considered force majeure.
6.4. elasto shall promptly inform the customer about the occurrence and cause of the delay and subsequently when it ends.
6.5. For the duration of force majeure and its consequences, elasto is relieved of its performance obligation. The customer has no claim to compensation or the payment of a contract penalty in this case.
6.6. The delivery term is extended or the delivery date is postponed for the duration of the impediment and under consideration of an adequate lead time. If the force majeure event lasts longer than three (3) months, elasto has the right to withdraw from the contract in whole or in part with no obligation of subsequent delivery or payment of compensation. Withdrawal under these circumstances does not affect elasto's claims from any previous partial deliveries.
7.1. In case of default of acceptance or debtor's delay on the part of the customer, the risk of accidental perishing or impairment of the goods passes to the customer no later than at the time the customer is first in default of acceptance. In this case, elasto also has the right to set a reasonable period of grace and, after it ends, to either store the goods in question on account of the customer internally and demand demurrage or to have them stored by a third party. The legal right of elasto to withdraw from the contract and demand compensation remains unaffected.
7.2. Regarding a claim for compensation, elasto may demand 30% of the agreed price as compensation without proof insofar as the customer fails to provide proof that no damages were incurred by elasto or that actual damages are significantly lower than the flat rate.
8.1. The contractual partner is required to inspect the goods for freedom from defects promptly upon delivery. Complaints due to apparent defects or apparent deviations in the characteristics of the goods, or due to the delivery of goods that are clearly different from the goods ordered, must be submitted to elasto in writing by the contractual partner promptly and no later than within 3 days after delivery. If complaints in case of apparent defects are not submitted in a timely manner and in proper form, the warranty is rendered void in this regard. The obligations to conduct an inspection and to submit complaints pursuant to Section 377 of the German Commercial Code (HGB) shall remain unaffected.
8.2. The warranty term is no more than 1 year from delivery of the goods.
8.3. There shall be no claims for defects in case of minor deviations from the agreed characteristics and quantity, nor in case of the minor impairment of usability. Tolerances commonly accepted in trade and the industry do not constitute material defects. Unless otherwise agreed, over and short deliveries up to 10% shall be accepted by the customer. In the production of articles made of synthetic materials, as well as similar goods, the occurrence of a comparatively small number of defective articles is technically unavoidable and a proportion of up to 5% of the total quantity does not constitute grounds for a complaint, regardless of whether the defect occurs in processing or printing. For light fastness, variability and deviations in the material colours and printing inks as well as the characteristics of gumming, coatings, impregnation etc., elasto is only liable insofar as defects in the materials would be discernible prior to use in the course of a proper inspection. Colour reproductions using any printing process are subject to minor colour deviations within a print run and between the proof and print run; this does not constitute grounds for a justified complaint.
8.4. If part of a delivery is defective, this does not justify the rejection of the entire delivery.
8.5. When a complaint regarding defects is justified and submitted in a timely manner, elasto in the course of supplementary performance may choose at its discretion to rectify the defect or to exchange, at no charge, defective goods returned by the customer for new goods in accordance with the contract (replacement delivery). Only if supplementary performance fails two times can the customer demand withdrawal from the contract.
8.6. Otherwise Section 9 applies regarding claims for compensation. Claims not covered by Section 9 or further claims of the customer against elasto and our assistants for material defects or defective title are excluded.
8.7. In case of a customer complaint regarding the delivery or parts thereof, none of the goods subject to the complaint may be used, processed or delivered to other parties. If this is done the complaint becomes invalid.
8.8. In case the customer is asked to disclose the technical documentation for the goods (in particular for toys) to market surveillance authorities, elasto reserves the right to submit this directly to the respective surveillance authority. Insofar the customer has no right to view the technical documentation.
9.1. Claims for damages or the reimbursement of expenses asserted by the customer (referred to as compensation claims below), regardless of the cause in law and in particular due to the violation of contractual obligations or illegal acts, are excluded.
9.2. This does not apply in case of mandatory liability, for example, pursuant to the Product Liability Act, or in case of intent, gross negligence, the loss of life, physical injury, the impairment of health or the violation of essential contractual obligations. However, the compensation claim for the violation of essential contractual obligations is limited to the foreseeable loss typical for this type of contract and to the amount of elasto's liability insurance coverage (minimum insurance coverage of EUR 500,000.00 per insured event), except in case of liability due to intent, gross negligence, the loss of life, physical injury or the impairment of health. The preceding provisions do not shift the burden of proof to the detriment of the customer.
9.3. For significant deviations in the characteristics of synthetic material, paper or other material procured by elasto, elasto's liability is limited to the amount of its own claim against its sub-supplier. In such cases, elasto is exempt from liability if elasto assigns its claims against the sub-supplier to the customer.
10.1. The delivered goods remain the property of elasto until they are paid in full and all claims arising from the business relationship have been settled.
10.2. Goods subject to retention of title may only be disposed of in the course of ordinary business, subject to ensuring that the claims from reselling the goods are assigned to elasto and that the retention of title is passed on by the customer to its customers. The customer assigns the claims and ancillary rights arising from the resale or other exploitation of the goods to elasto now and in advance; elasto hereby accepts this assignment. The authorisation for resale may be revoked at any time. The customer is obliged to identify the buyer of the goods subject to retention of title to elasto in writing on request.
10.3. Actual or legal access by third parties to the goods subject to retention of title as well as damage to or loss of the same must be communicated to elasto promptly in writing; in case of seizure, the bailiff's return or attachment order must be presented to elasto.
10.4. In case of third-party access, the customer bears all costs incurred to revoke said access, in particular also within the scope of third-party proceedings and for replacement of the goods.
10.5. All claims arising from reselling the goods subject to retention of title, or from any other cause in law regarding the goods subject to retention of title (including all open account balances), are assigned to elasto in full by the customer as collateral now and in advance. elasto accepts this assignment now and in advance. Subject to the right to revocation, elasto authorises the customer to collect the claims assigned to elasto on the customer's account and in its name.
10.6. This collection authorisation can be revoked if and as long as the customer is in arrears with the settlement of a claim, is unable to pay or in case an application is submitted for insolvency proceedings regarding the customer's assets.
10.7. Processing and modification of the goods by the customer is in the name and on behalf of elasto, so that elasto is deemed to be the manufacturer and acquires ownership of the newly created goods. In case of processing and modification together with other materials, elasto acquires joint ownership in proportion of the invoice value of elasto's goods to that of the other materials. Insofar as the combination or mixing of elasto's goods with an item of the customer takes place so that the latter is considered the principal item, elasto shall acquire joint ownership of the item in proportion to the invoice value of elasto's goods to the invoice value or, for lack of the same, the market value of the principal item. In this case the customer is deemed to be the custodian.
11.1. The copyright to elasto's own sketches and designs, originals, films and similar, using any methods and for any purposes, remains with elasto in all cases unless expressly agreed otherwise.
11.2. Means of production such as films, lithographs, printing plates, printing blocks, screens, punches and tools remain the property of elasto in all cases. Providing access to third parties, duplication or further use requires the written consent of elasto. Designs are protected by law as intellectual property. Verifying the right to duplicate printed matter is the sole responsibility of customer. The customer has sole liability if rights are violated in filling the customer's order, in particular third-party proprietary rights. The customer is obliged to exempt elasto from all third-party claims for such violations of rights. The customer is obliged to adequately reimburse elasto in advance for any legal costs incurred by elasto in this context.
11.3. elasto has the right to apply its company name on the reverse side or another suitable location of the articles delivered by elasto.
11.4. elasto also has the right to reuse articles produced by order of the customer as samples or for promotional purposes.
12.1. The contractual relationship is subject exclusively to the laws of the Federal Republic of Germany. The United States Convention on Contracts for the International Sale of Goods (CISG) and the referral provisions of German international civil law (IPR) do not apply.
12.2. Unless otherwise agreed, the place of fulfilment for all obligations under the contractual relationship for both parties is Sulzbach-Rosenberg, Germany.
12.3. As far as permissible, the place of jurisdiction for all disputes arising from or related to this contract is Nuremberg, Germany.
12.4. Should individual provisions of this contract be ineffective or infeasible, the remainder of the contract shall remain unaffected. Ineffective or infeasible provisions shall be replaced with valid provisions that come as close as possible to the economic purpose of the ineffective or infeasible provisions. This applies correspondingly in case of gaps in the contract.