General Terms and Conditions of Sale and Delivery of CEMO GmbH
(As at 1 July 2023. Based on the non-binding recommended terms and conditions of the IK Industrievereinigung Kunststoffverpackungen e.V.)
Scope of Application
The following terms and conditions apply to businesses, legal entities governed by public law or special funds governed by public law.
I. Application
1. Orders shall only become binding upon the Supplier’s confirmation of the order. Unless the customer objects to the contents of the order confirmation within 7 days of receipt, the contract shall be concluded in accordance with the terms set out therein, even if these differ from the original agreements due to transmission, communication or clerical errors. Any amendments or additions must be made in writing. All quotations are subject to change unless specifically described as firm offers. Quantities or dimensions are approximate values and not binding unless expressly described as such.
2. In the case of ongoing business relationships, these terms and conditions shall also apply to future transactions, even if no express reference is made to them, provided that they were referred to in connection with an order previously confirmed by the supplier.
3. These General Terms and Conditions apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the purchaser shall only form part of the contract if and to the extent that their validity is expressly agreed to in writing. This requirement for consent shall also apply if the Supplier delivers and invoices goods whilst being aware of the Purchaser’s General Terms and Conditions. The provisions governing distance selling in commercial dealings with consumers shall not apply, not even by analogy, to the business relationship with traders.
4. Should any individual provisions of these General Terms and Conditions of Sale be or become invalid, this shall not affect the validity of the remaining provisions.
II. Prices
1. In cases of doubt, prices are quoted ex works, excluding freight, customs duties, import or export levies and packaging, plus value added tax at the statutory rate.
2. If, after the submission of the quotation or after order confirmation and up to the time of delivery, the relevant cost factors – in particular for material, energy or labour – change by more than 5 per cent, either party shall be entitled to demand a price adjustment. This adjustment shall be calculated on the basis of the extent to which the relevant cost factor affects the total price.
3. The supplier shall not be bound by previous prices for new orders.
III. Obligation to Deliver and Acceptance, Force Majeure
1. Delivery periods shall commence upon receipt of all documents required for the execution of the order, the down payment and the timely provision of materials, insofar as this has been agreed. Upon notification that the goods are ready for dispatch, the delivery period shall be deemed to have been met if dispatch is delayed or rendered impossible without fault on the part of the supplier.
2. If an agreed delivery period is not met due to the Supplier’s own fault, the Customer shall in any event be obliged to grant a reasonable grace period. The CUSTOMER shall only be entitled to claims for damages arising from delay insofar as CEMO’s liability is not excluded or limited in accordance with these terms and conditions; even then, such claims shall be limited to the damage foreseeable at the time the contract was concluded, but in total not exceeding 2% of the value of the outstanding partial or complete delivery or service, insofar as the CUSTOMER is unable to use this in a timely manner or in accordance with the contract as a result of the delay or non-delivery. CEMO reserves the right to prove that the CUSTOMER has suffered no loss at all or only a loss substantially less than that claimed.
3. Partial deliveries are permitted, insofar as this is reasonable.
4. In the case of call-off orders without an agreed duration, production batch sizes or acceptance dates, the supplier may demand a binding specification of these details no later than three months after order confirmation. If the Customer fails to comply with this request within three weeks, the Supplier shall be entitled to set a two-week grace period and, upon its expiry, to withdraw from the contract and/or claim damages. Alternatively, the supplier is entitled to produce the agreed framework quantity of goods and to offer the goods to the customer for acceptance or to deliver them.
5. If the customer fails to fulfil its obligations to take delivery, the supplier, without prejudice to any other rights, shall not be bound by the provisions governing self-help sales; rather, it may sell the goods on the open market after giving the customer prior notice.
6. Events of force majeure entitle the Supplier to postpone delivery for the duration of the hindrance plus a reasonable start-up period, or to withdraw from the contract in whole or in part in respect of the unfulfilled part. No claims for damages shall arise in such a case. Force majeure includes strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions or transport delays or interruptions through no fault of the supplier, unforeseeable machinery breakdowns, shortages of raw materials or energy through no fault of the supplier, which render timely delivery impossible for the Supplier despite reasonable efforts. This shall also apply if the aforementioned impediments occur whilst the Supplier is in default or in the case of a subcontractor.
The customer may request the supplier to state within two weeks whether they wish to withdraw from the contract or to deliver within a reasonable grace period. If the supplier fails to respond, the customer may withdraw from the unfulfilled part of the contract.
The supplier shall notify the customer without delay if a case of force majeure, as set out in paragraph 1, occurs. The supplier shall minimise any disruption to the customer as far as possible, where necessary by handing over the moulds for the duration of the hindrance.
IV. Terms of Payment
1. All payments shall be made in € (EURO) exclusively to the Supplier. Unless otherwise agreed, the purchase price for deliveries or other services is payable without deduction within 30 days of the invoice date.
2. Invoices may be sent, at our discretion, by post or by email. The Customer agrees to receive invoices electronically. Electronic invoices shall be sent to the Customer by email in PDF format to the email address provided.
3. If the agreed payment deadline is exceeded, interest shall be charged at the statutory rate of 9 percentage points above the relevant base rate in accordance with Section 247 of the German Civil Code (BGB), unless the supplier can prove that the loss incurred was greater.
4. Cheques or bills of exchange shall only be accepted if expressly agreed in writing in advance and only on account of performance. All costs associated with them shall be borne by the customer.
5. The customer may only set off claims or assert a right of retention against payments if their claims are undisputed or have been established by a final and binding court judgement.
6. Persistent failure to comply with payment terms or circumstances giving rise to serious doubts as to the Customer’s creditworthiness shall entitle the Supplier to declare all claims immediately due and payable. Furthermore, in such cases, the supplier is entitled to demand advance payment for outstanding deliveries and, following the fruitless expiry of a reasonable period, to withdraw from the contract.
V. Packaging, Dispatch, Transfer of Risk and Default of Acceptance
1. Unless otherwise agreed, the Supplier shall choose the packaging, method of dispatch and route of dispatch. The Supplier is entitled to instruct one of the carriers it normally uses for its dispatch operations, on the usual terms agreed with that carrier.
2. Even in the case of carriage paid delivery, the risk shall pass to the customer when the goods leave the supplier’s premises. In the event of delays in dispatch for which the customer is responsible, the risk shall pass as soon as notification is given that the goods are ready for dispatch.
3. Upon the customer’s written request, the goods shall be insured at the customer’s expense against risks to be described by the customer.
4. In the event of the customer being in default of acceptance, the supplier is entitled to store the goods at the customer’s expense. If the supplier stores the goods itself, it is entitled to storage costs amounting to 0.5 per cent of the invoice value of the stored goods for each calendar week or part thereof. The right to claim higher storage costs upon provision of evidence is reserved.
VI. Retention of Title
1. The goods shall remain the property of the supplier until all claims to which the supplier is entitled against the customer have been settled, even if the purchase price for the description of the claims has been paid. In the case of an open account, the retention of title to the goods supplied (goods subject to retention of title) shall serve as security for the supplier’s balance invoice. If, in connection with the payment of the purchase price, the Supplier becomes liable under a bill of exchange, the retention of title shall not lapse until the bill of exchange has been finally honoured by the Customer as the drawee.
2. Any processing or treatment carried out by the customer shall be deemed to have been carried out on behalf of the supplier, excluding the acquisition of ownership pursuant to Section 950 of the German Civil Code (BGB); the Supplier shall become a co-owner of the resulting item in proportion to the ratio of the net invoice value of its goods to the net selling price of the goods to be processed or treated; this item shall serve as goods subject to retention of title to secure the Supplier’s claims according to paragraph 1.
3. In the event of processing (combination/blending) by the customer with other goods not belonging to the supplier, the provisions of Sections 947 and 948 of the German Civil Code (BGB) shall apply, with the result that the supplier’s share of co-ownership in the new item shall now be deemed to be goods subject to retention of title within the meaning of these terms and conditions.
4. The Customer is only permitted to resell the goods subject to retention of title in the ordinary course of business and on condition that he also agrees a retention of title with his customers according to paragraphs 1 to 3. The Customer is not entitled to dispose of the goods subject to retention of title in any other way, in particular by pledging them or transferring them as security.
5. In the event of resale, the Customer hereby assigns to the Supplier, with effect immediately and until all the Supplier’s claims have been satisfied, the claims arising from the resale and any other legitimate claims against the Customer’s customers, together with all ancillary rights. At the Supplier’s request, the Customer shall be obliged to provide the Supplier without delay with all information and to hand over all documents necessary for the Supplier to assert its rights against the Customer’s buyers.
6. If the goods subject to retention of title are resold by the customer after processing according to paragraphs 2 and/or 3 together with other goods not belonging to the supplier, the assignment of the claim for the purchase price according to paragraph 5 shall apply only to the extent of the invoice value of the supplier’s goods subject to retention of title.
7. If the realisable value of the security available to the Supplier exceeds the Supplier’s total claims by more than 10 per cent, the Supplier shall, at the Customer’s request, be obliged to release security to that extent, at the Supplier’s discretion.
8. Any attachment or seizure of the goods subject to retention of title by third parties must be reported to the supplier without delay. Any costs arising from such intervention shall in all cases be borne by the customer, unless they are borne by third parties.
9. If, in accordance with the above provisions, the supplier exercises its right of retention of title by repossessing the goods subject to retention of title, it shall be entitled to sell the goods on the open market or to have them auctioned. The goods subject to retention of title shall be repossessed at the price realised, but not exceeding the agreed delivery prices. The right to make further claims for damages, in particular for loss of profit, is reserved.
10. Goods abroad.
If the goods are located abroad and were delivered prior to payment of all sums due under the contract, they shall remain the property of the supplier until full payment has been made, insofar as this is permitted under the law of the jurisdiction in which the goods are located. If such law does not permit retention of title but does allow other rights in the goods to be reserved, the Supplier may exercise all rights of this kind; for example, the Supplier may also be entitled to a right of lien where applicable. The customer is obliged
, upon request, to assist the supplier without delay in asserting any rights of the kind referred to in this clause. The customer must also cooperate where registrations or other measures are required for the
retention of title to be effective.
VII. Liability for Material Defects
1. The quality and model of the products shall be determined by the product description or, where agreed, by the samples, which the Supplier shall provide to the Customer for inspection upon request. In all other respects, Clause XII(1) shall also be observed. References to technical standards serve to describe the performance and are not to be interpreted as a guarantee of quality. The tolerances customary in the industry shall apply. Without specific written agreement, manufacture shall be carried out using materials customary in the industry and in accordance with the agreed manufacturing processes or, in the absence of such an agreement, in accordance with recognised manufacturing processes. Minor deviations from the original in the case of colour productions or reproductions shall not be regarded as a defect; the same applies to customary, production-related deviations between proofs and the final print run.
2. If the supplier has advised the customer beyond the scope of its contractual obligations, it shall only be liable for the functionality and suitability of the goods supplied if it has given an express prior assurance to that effect.
3. Notices of defect must be raised in writing without delay. In the case of latent defects, the notice must be raised immediately upon discovery. In both cases, unless otherwise agreed, all claims for defects shall become time-barred twelve months after the transfer of risk.
4. Where a notice of defect is justified, the supplier is obliged to provide subsequent performance (at its discretion, by repair, replacement or software updates). If the supplier fails to fulfil this obligation within a reasonable period, or if the remedy fails repeatedly, the customer is entitled to a reduction in the purchase price or to withdraw from the contract. For any further claims, in particular claims for reimbursement of expenses or compensation for damage resulting from defects or consequential damage, the limitations of liability set out in Section VIII shall apply. Replaced parts must be returned to the supplier carriage forward upon request.
5. Unauthorised repairs and improper handling shall result in the loss of all claims for defects. The customer shall only be entitled to carry out remedial work themselves, after first notifying the supplier, and to claim reimbursement of the reasonable costs incurred, in order to prevent disproportionately large losses or in the event of a delay by the supplier in rectifying the defect.
6. Normal wear and tear, ageing or deterioration shall not give rise to any warranty claims; nor shall the end-of-life of an operating system for which a digital product was developed and marketed.
7. Claims for recourse pursuant to Sections 327u, 445a, 445c and 478 of the German Civil Code (BGB) (consumer recourse) shall only exist insofar as the claim against the party entitled to recourse by a consumer was justified and only to the extent provided for by law; but not, however, in respect of goodwill arrangements not agreed with the supplier, and are subject to the party entitled to recourse fulfilling their own obligations, in particular the obligation to give notice of defects.
8. For digital products, the supplier shall provide the updates (software updates) necessary to rectify faults to the extent required by law. The supplier is not obliged to provide upgrades to new operating systems.
VIII. General Limitations of Liability
1. The Supplier shall only be liable for damages or reimbursement of expenses insofar as the Supplier, its senior executives or vicarious agents are found to have acted with intent, gross negligence, or to have caused death, bodily injury or damage to health.
2. Liability without fault under the Product Liability Act and liability for the fulfilment of a guarantee of quality remain unaffected.
3. Liability for the culpable breach of material contractual obligations also remains unaffected; however, such liability is limited to foreseeable damage typical of the contract, except in the cases referred to in paragraph 1. Essential contractual obligations are to be understood as the fundamental, basic obligations arising from the contractual relationship which are of particular importance for the proper execution or performance of the contract or which have a significant impact on the relationship of trust existing between the parties, in particular, therefore, the fulfilment of delivery obligations and important duties to provide information.
4. The above provisions do not entail any shift in the burden of proof to the detriment of the customer.
IX. Moulds (Tools)
1. The price for moulds also includes the costs of a one-off sample production, but not the costs of testing and machining fixtures, nor the costs of any modifications requested by the customer. Costs for further sample productions for which the supplier is responsible shall be borne by the supplier.
2. Unless otherwise agreed, the Supplier shall remain the owner of the moulds manufactured for the Customer by the Supplier itself or by a third party commissioned by the Supplier. Moulds shall, where expressly agreed, be used solely for the Customer’s orders, provided the Customer fulfils its payment and acceptance obligations. The supplier is only obliged to replace these moulds free of charge if they are necessary to fulfil a production volume guaranteed to the customer. The supplier’s obligation to store the moulds expires two years after the last delivery of parts from the mould. The customer must be informed before the moulds are disposed of.
3. If a contract is terminated but the moulds have not yet been written off, the Supplier is entitled to invoice the remaining write-off amount in full without delay.
4. If, as agreed, the customer is to become the owner of the moulds, ownership shall pass to the customer upon full payment of the purchase price for the moulds. The handover of the moulds to the customer shall be replaced by their safekeeping on the customer’s behalf. Irrespective of the customer’s statutory right to the return of the moulds and of the moulds’ service life, the supplier shall be entitled to exclusive possession of them until the termination of the contract. The supplier shall mark the moulds as belonging to a third party and, at the customer’s request, insure them at the customer’s expense.
5. In the case of moulds owned by the customer according to clause 4 and/or moulds made available by the customer on loan, the Supplier’s liability with regard to safekeeping and maintenance is limited to the standard of care exercised in its own affairs. The costs of maintenance and insurance shall be borne by the customer. The supplier’s obligations shall cease if, following completion of the order and a corresponding request, the customer fails to collect the moulds within a reasonable period. As long as the customer has not fulfilled their contractual obligations in full, the supplier shall in any event be entitled to a right of retention over the moulds.
X. Designs/Plates/Documents
1. The Supplier retains the sole right of model development and copyright in respect of its designs, documents, illustrations, drawings and other documents. Where the customer provides templates and ideas, the supplier shall be granted joint copyright to the extent that the template or design has been developed by the supplier.
2. If no contract is concluded, the Customer is obliged to return to the Supplier all documents handed over to it, including any copies made, without delay. Digital copies must be permanently destroyed.
3. When providing templates and ideas, the customer shall indemnify the supplier against any claims by third parties asserting rights thereto.
4. The designs, final artwork, printing plates and similar items produced by the supplier shall remain the supplier’s property, even if the customer has been charged for the production costs.
5. The customer shall only acquire rights of use in the supplier’s own designs if a separate payment is made for this. In case of doubt, only a simple right of use shall be granted, unless expressly agreed otherwise.
XI. Provision of Materials
1. Where materials are supplied by the Customer, they must be delivered at the Customer’s expense and risk, with a reasonable quantity surcharge of at least 5 per cent, in good time and in perfect condition.
2. Should these conditions not be met, the delivery period shall be extended accordingly. Except in cases of force majeure, the customer shall bear the resulting additional costs, including those arising from interruptions to production.
XII. Industrial Property Rights and Legal Defects
1. Where the Supplier is to supply goods based on drawings, models, samples or by using parts provided by the Customer, the Customer shall ensure that this does not infringe any third-party industrial property rights in the country of destination of the goods. The Supplier shall inform the Customer of any rights of which it is aware, but is not obliged to carry out its own investigations. The Customer shall indemnify the Supplier against any claims by third parties upon first request and shall compensate the Supplier for any damage incurred. If the Supplier is prohibited by a third party from manufacturing or supplying the goods on the grounds of a property right belonging to that third party, the Supplier shall be entitled – without examining the legal situation – to suspend work until the legal situation has been clarified between the Customer and the third party. Should the delay render it unreasonable for the Supplier to continue with the order, the Supplier shall be entitled to withdraw from the contract.
2. Drawings and samples provided to the supplier which have not resulted in an order shall be returned upon request; otherwise, the supplier is entitled to destroy them three months after submission of the quotation. This obligation applies to the customer accordingly. The party entitled to destroy such items must inform the other party of their intention to do so in good time in advance.
3. The supplier shall retain the ownership rights, copyright and, where applicable, industrial property rights, in particular all rights of use and exploitation, in respect of the models, moulds and jigs, designs and drawings created by the supplier or by third parties on its behalf. Upon request, the customer must return the records, documents, moulds, samples or models, including any copies that may have been made, to the supplier without delay.
4. Should any other legal defects exist, Section VII shall apply mutatis mutandis.
XIII. Food safety and recycled materials
1. Where a product is intended for use in contact with food, the customer shall, at its own responsibility, verify in advance that the material is suitable for the specific foodstuff.
2. Recycled raw materials are carefully selected by the Supplier. Nevertheless, recycled plastics may be subject to significant variations from batch to batch in terms of surface texture, colour, purity, odour and physical or chemical properties; this does not entitle the Customer to make claims for defects against the Supplier. However, upon request, the Supplier shall assign any claims against upstream suppliers to the Customer; the Supplier does not guarantee the validity of such claims.
XIV. Data Protection
1. The Supplier is entitled to store data relating to the Customer electronically and to process and use it for its operational purposes in accordance with the statutory provisions. The provisions of the GDPR shall be observed. Further information on data protection measures can be found on
the Supplier’s website or obtained on request from its Data Protection Officer.
2. In the event of a product recall initiated by the Supplier or a sub-supplier, the Supplier is entitled to pass on the Customer’s contact details to the sub-supplier for the purpose of direct contact. The customer consents to this procedure to simplify the process – also in light of the provisions of the GDPR and the Federal Data Protection Act; there is a legitimate interest in such a transfer of data.
3. To facilitate the handling of the product recall, the relevant upstream supplier may contact the customer directly. In such cases, the supplier will pass on the customer’s address details – solely for the purpose of establishing contact to arrange appropriate measures as part of carrying out a product recall.
4. The customer’s data will not be used for any other purpose without their express consent.
XV. Confidentiality
1. The customer shall treat all information received in the course of the collaboration regarding the supplier’s products and the agreed terms, quantities and other business transactions with the customer as strictly confidential, insofar as such information is not already in the public domain. In order to safeguard claims against third parties under the Trade Secrets Act, the Customer shall implement all necessary access restrictions and security measures to protect the information from unauthorised access, including by the Customer’s own employees, unless the employee in question requires the information to perform their duties.
2. The duty of confidentiality shall continue to apply even after the termination of the agreement. The Customer shall be liable for all losses incurred by the Supplier as a result of a breach of these obligations.
XVI. Place of performance and jurisdiction
1. The place of performance shall be the location of the supplier’s manufacturing plant.
2. The place of jurisdiction shall be, at the supplier’s discretion, either its registered office or the customer’s registered office.
3. German law shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.