f) Events that are neither foreseeable, avoidable, nor subject to our control (e.g., force majeure; stop pages; legal industrial actions; difficulties in obtaining material or energy; transportation delays; short- ages of labor, energy, or raw materials; actions by administrative bodies; as well as difficulties in ob- taining authorizations (in particular import and export licenses) extend the agreed delivery period for the length of the disturbance and its effects. This shall also apply, if the above events occur at our suppliers’ or during an existing delay. If the impairment is not only temporary, both partners have the right to withdraw from the contract. Should these conditions make delivery or performance impossible or unreasonable, we are no longer obligated to deliver. In any case, any claim for damages is excluded.
g) If the Customer is not able to provide the materials or services we need for the proper production of the order on time, the Customer must inform us thereof at least 10 days before the planned produc- tion date. The Customer must bear any resulting extra expenses.
8. Use of the Goods / Storage:
The products that we have filled must only be used and stored in compliance with the applicable regu- lations. Usage instructions and in particularly warnings printed on the packaging must be followed, as must be instructions on the corresponding safety information sheets. Should there be any uncertainty, use or storage must be delayed until a qualified person has been consulted. In internal relationship, claims against us due to use or storage which is improper or not in compliance with applicable regula- tions by the Customer are excluded.
a) Our product descriptions do not constitute guarantees.
b) Unless there are agreements to the contrary, customary or slight, technically unavoidable deviations in quality, color, dimensions, or weight are not defects.
c) Defects in part of a Delivery do not give the Customer the right to reject the whole Delivery. We inspect the goods before shipping. We must be notified of apparent defects without delay, but no later than eight (8) days after receipt of the Delivery; of hidden defects within 5 days after discovery. Should these deadlines be exceeded, all claims and rights due to liability for defects for these defects expire. Notice must be in writing and accurately describe the type and extent of the defect.
d) As far as the Customer provides raw materials, packaging materials or formulations for the production (subsequently referred to as Provided Goods), the same shall be delivered to us free of any charges and with the pertaining specification documents. They shall be suitable for the intended purpose and shall be approved and shall meet the statutory provisions. We are entitled, but not obliged without any special agreement, to check the Provided Goods for defects or their suitability for the production pur- pose. The same shall apply correspondingly if we are obliged to call off materials and raw materials from contracts between the Customer and any third party against charges.
e) For any loss due to shrinkage and rejects of up to 2 % for raw materials and packaging materials and up to 5% for labels provided to us by the Customer, no complaint shall be filed. Such loss is common within the industry and shall be borne by the Customer.
f) The period of limitation for warranty claims due to a deficiency is 12 months after transferal of risk unless we are liable for any damage due to the injury of life, body or health, have violated our obliga- tions deliberately or with gross negligence, have maliciously concealed defects or have assumed a guarantee extending this period or a longer period is compulsively required by law.
g) In case of legitimate claims due to defects, we have the choice between delivering replacement items or repairing the goods. Should the supplementary performance fail, the Customer may demand a re- duction in price or, should there be significant defects, withdraw from the contract. Should the sup- plementary performance fail, the Customer may also demand damages instead of performance in accordance with Item 10b).
h) We do not bear supplementary performance expenses resulting from the goods having been moved to another location than the Customer‘s place of business.
i) Violation of third party industrial property rights is a defect only if these rights exist in the Federal Republic of Germany.
a) We fill according to the specifications agreed with the Customer and the legal regulations.
b) Claims for damages of any sort against us are excluded when we, our lawful representatives or our vicarious agents have caused the damage by ordinary negligence. This exclusion of liability does nei- ther apply to the injury of life, body or health nor the assumption of a contractual guarantee, nor viola- tion of important contractual obligations. Important contractual obligations are those obligations, the fulfillment of which makes the proper execution of the contract possible in the first place, in the adher- ence to which the Customer constantly trusts and may trust and the breach of which endangers the achievement of the purpose of the contract. Should we assume a guarantee, our liability is, however, limited to the extent of the guarantee or, by ordinarily negligent violation of important contractual obli- gations, to the damage typical for the contract and foreseeable. Claims arising from product liability law are not affected.
c) To the extent the Customer determines or provides labels and/or texts to be written, it shall be liable for the content and appearance of these texts, in particular warning texts, declarations of filling quanti- ties, assurances of properties, etc. For goods delivered in neutral packaging, the Customer shall be liable to the end user for all damages due to the deficient declaration of its products.
d) For the completely or partly rendered performance of the Customer for the implementation of the production in commission orders, e.g. the provision of formulations, raw materials and packaging ma- terials, transport regulations etc. or their suitable specifications, the Customer shall be exclusively liable to us in internal relationship. The Customer shall be responsible that its scope of performance has been sufficiently investigated and tested by means of long-term studies and that formulations and packaging materials have been shown to be chemically and physically suitable for their intended purpose.
e) Release from Claims: If a third party lodges a claim against us because of product liability, the Customer shall hold us harm- less from such claims if and to the extent that the damage was caused by a fault in material or raw materials (1) provided by the Customer to us or (2) delivered on the basis of call-off contracts be- tween the Customer and another supplier or (3) purchased by us on the basis of Customer specifica- tions.
11. Additional Expenses:
The Customer will be billed for expenses necessary for production (e.g., lithographs, printing blocks, films, and special tools).
In case of well-founded doubts as to the Customer‘s ability to pay, e.g., due to depressed payments, delay in payment or bill or check protest, we may require collateral, cash in advance or cash payment for contemporaneous performance. If the Customer does not fulfill this demand within an appropriate time limit, we may withdraw from the uncompleted part of the contract. The insolvency shall only con- stitute justified doubt in the solvency of the Customer in the sense of this Item 12, if the insolvency proceedings have been rejected for insufficiency of assets.
13. Assignment of Claims:
If nothing to the contrary has been agreed and we still have outstanding claims against the Customer, the Customer commits itself to assign any claims against insurance companies and third parties, e.g., due to damage to the goods, to us in writing within one week of our request.
14. Place of Fulfillment, Place of Jurisdiction, Applicable Law:
a) The place of fulfillment for any performance arising from delivery contracts is our place of business.
b) If the Customer is a businessperson in the sense of the German Civil Code, a body corporate orga- nized under public law or a public-law special investment fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business. However, we also have the right to sue at the Customer’s place of business.
c) German law applies. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall be excluded.