General Terms & Conditions
§ 1 Scope
(1) The following Terms & Conditions shall apply exclusively to all contracts concluded between Sprick GmbH Bielefelder Papier- und Wellpappenwerke & Co, Hanfstrasse 23, 33607 Bielefeld (hereinafter referred to as “Sprick”) and entrepreneurs within the meaning of Section 14 of the German Civil Code (§ 14 BGB), legal entities under public law or special funds under public law (hereinafter referred to as the “buyer”). Terms and conditions of the buyer do not apply as a whole, unless Sprick has expressly agreed beforehand in writing. This also applies to individual clauses in the buyer’s terms and conditions that do not conflict with the following conditions. Sprick Terms & Conditions shall also apply exclusively if Sprick itself realises the delivery to the buyer without reservation in the knowledge of different general terms and conditions of the buyer.
These Terms & Conditions shall also apply to all future contracts with the buyer.
Individual contractual agreements shall take precedence over these Terms & Conditions in every case.
§ 2 Offers
Offers from Sprick are non-binding unless otherwise expressly confirmed. Sprick reserves the property rights and copyrights to samples, copies and other documents. They must not be rendered accessible to third parties.
(2) With an order for goods, the buyer submits a binding offer which Sprick is entitled to accept within two weeks of receipt, unless otherwise stated in the offer.
§ 3 Orders in online shop [inactive] [nicht aktiv]
(1) These General Terms & Conditions also apply to orders in the Sprick online shop for commercial and corporate business customers.
(2) The presentation of goods in the online shop does not represent a legally binding offer from Sprick, but rather an invitation to order.
(3) The purchase contract is concluded when Sprick accepts the buyer’s order through an order confirmation by email immediately after receipt of the order, or with a separate order confirmation no later than five days after the buyer’s order. Sprick confirms receipt of the order immediately after dispatching the order. This confirmation of receipt does not yet constitute an acceptance of the contract.
§ 4 Delivery period and delay in delivery
(1) The delivery time is always non-binding. Unless specific delivery dates have been agreed, the delivery time begins on the day the order confirmation is sent or the order is accepted. It ends on the day on which the goods leave the delivery plant or dispatch warehouse. If the buyer requests a change to the order after order confirmation or order acceptance which affects the production time, the delivery time only begins with confirmation of the change.
If Sprick does not meet a binding delivery deadline for reasons for which it is not responsible, Sprick shall immediately inform the buyer of this and simultaneously notify the buyer of the expected new delivery deadline. If Sprick cannot provide the service within this delivery period and is not responsible for this circumstance, Sprick can withdraw from the contract. Sprick shall immediately reimburse payments already made by the buyer.
(3) The occurrence of a delay in delivery is determined by statutory provisions. A reminder from the customer is required in every case.
§ 5 Delivery, transfer of risk, acceptance and default of acceptance
(1) In the absence of deviating agreements, shipment is realised in rolls or on pallets (without wrapping) by truck or as freight at the expense and risk of the customer. A transport insurance policy shall only be concluded at the request and on the account of the customer.
(2) Delivery takes place ex warehouse, which is also the place of performance for delivery and any supplementary performance.
(3) The risk of accidental loss and accidental deterioration of the goods is transferred to the buyer when the goods are handed over to the buyer. If the goods are shipped, the risk of accidental loss and accidental deterioration of the goods and the risk of delay are transferred to the freight forwarder, the carrier or the person or institution otherwise assigned to realise shipment. If an acceptance has been agreed, this is decisive for the transfer of risk. Statutory provisions of the Contract Law for Work and Labour (Werkvertragsrecht) also apply accordingly to an agreed acceptance. The handover or acceptance is the same if the buyer is in default of acceptance.
(4) If the buyer is in default of acceptance, if the buyer fails to cooperate or if the delivery is delayed for other reasons for which the buyer is responsible, Sprick is entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, Sprick shall calculate flat-rate compensation of 0.5% of the net value of the goods per calendar week, commencing with the delivery period or, in the absence of a delivery period, with notification that the goods are ready for dispatch.
Proof of greater damage and the legal claims of Sprick (in particular reimbursement of additional expenses, reasonable compensation, withdrawal/termination) remain unaffected. However, the flat rate shall be offset against further monetary claims. The buyer is permitted to prove that Sprick did not suffer any damage or only significantly lower damage than the above flat rate.
§ 6 Prices and terms of payment
(1) In the absence of deviating agreements, the prices valid at the time of conclusion of the contract plus the applicable statutory value-added tax shall be decisive.
(2) In the event of sale by delivery to a place other than the place of performance, the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance the buyer may require. If Sprick does not invoice the transport costs actually incurred in individual cases, a flat-rate transport cost (without transport insurance) of EUR 100.00 per pallet shall be considered as agreed. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
(3) The purchase price is due and payable within 14 days (with 2% discount), or alternatively within 30 days (strictly net), calculated from the date of invoice. However, even in the context of an ongoing business relationship, Sprick is entitled to realise a delivery at any time in whole or in part exclusively against prepayment. Sprick shall declare a corresponding reservation with the order confirmation at the latest.
(3) Payments by bill of exchange are not permitted. A late payment entitles Sprick to charge default interest at a rate of 9% above the respective per annum base rate.
(4) The buyer shall be in default with the expiry of the payment period mentioned under 5 (3). Interest shall be paid on the purchase price during the period of default at the applicable statutory default interest rate. Sprick reserves the right to claim further damages caused by default. The entitlement to commercial default interest pursuant to Section 353 of the German Commercial Code (§ 353 HGB) remains unaffected with regard to business people.
(5) The buyer is only entitled to offset or retention rights insofar as the buyer’s claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer’s reciprocal rights, in particular pursuant to Section 7 (6) Clause 2 of these General Terms & Conditions, remain unaffected.
(6) If, following conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that the payment claim of Sprick is jeopardised by the buyer’s inability to pay, Sprick shall, following setting of an extension period if necessary, be entitled to withdraw from the contract according to the statutory provisions on refusal of performance and pursuant to Section 321 of the German Civil Code (§ 321 BGB). In the case of contracts for the production of unreasonable items (made-to-order items), Sprick can immediately declare its withdrawal from the contract. Statutory regulations governing the dispensability of setting a deadline remain unaffected.
§ 7 Retention of title
(1) Sprick retains ownership of the goods sold until all current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The buyer must notify Sprick immediately in writing if an application is made to open insolvency proceedings or if third parties have access to (e.g. seizures) the goods belonging to Sprick.
(3) If the buyer acts contrary to the contract, particularly if the purchase price is not paid, Sprick is entitled to withdraw from the contract in accordance with statutory provisions and/or to demand the return of the goods on the basis of retention of title. Demands for restitution do not also include the declaration of withdrawal, but rather that Sprick is entitled to only demand the goods and to reserve the right to withdraw. If the buyer does not pay the due purchase price, Sprick may only assert these rights if Sprick has previously unsuccessfully set the buyer a reasonable deadline for payment, or if such a deadline is superfluous according to statutory provisions.
(4) The buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked pursuant to (c) below. In this case, the following provisions also apply.
(a) The retention of title extends to the full value of the products created by processing, mixing or combining the goods from Sprick, whereby Sprick is deemed to be the manufacturer. If the property rights of third parties continue to exist in the case of processing, mixing or combining with goods of third parties, Sprick shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The buyer hereby assigns claims against third parties arising from resale of the goods or product to Sprick in total or to the amount of the possible co-ownership share to which Sprick is entitled pursuant to the above paragraph as security to Sprick. Sprick accepts the assignment. The obligations of the buyer specified in 6 (2) also apply with regard to the assigned claims.
(c) In addition to Sprick, the buyer remains authorised to collect the claim. Sprick is under obligation not to collect the claim as long as the buyer fulfils its payment obligations towards Sprick, there is no shortcoming in the buyer’s performance and Sprick does not assert retention of title by exercising a right pursuant to 6 (3). However, if this is the case, Sprick can demand that the buyer reveal the assigned claims and their debtors to Sprick, provide all information required for collection, hand over associated documents and notify debtors (third parties) of the assignment. In this case, Sprick is also entitled to revoke the buyer’s authorisation to resell and process the goods subject to retention of title.
(d) If the realisable value of the collateral exceeds Sprick’s claim by more than 10%, Sprick shall release collateral at its own discretion at the request of the buyer.
§ 8 Warranty
(1) Statutory provisions apply to the buyer’s rights in the event of defects in material and title (including incorrect and short deliveries and improper assembly or inadequate assembly instructions), unless otherwise specified below. In all cases, special statutory provisions remain unaffected for the final delivery of the unprocessed goods to a consumer, even if the consumer has processed them (supplier recourse pursuant to Section 478 of the German Civil Code (BGB)). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur (e.g. through incorporation in another product).
(2) The basis of Sprick’s liability for defects is primarily the agreement concluded on the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or were made public by Sprick (in particular in catalogues or on the Internet website) at the time the contract was concluded shall apply as an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, the statutory provision shall apply to assessment of whether or not a defect exists (Section 434 (1) Clause 2 and 3 of the German Civil Code (BGB)). However, Sprick assumes no liability for public statements by third parties (e.g. advertising statements) to which the buyer did not indicate that Sprick was decisive for its purchasing decision. Slight deviations in the material composition, sizing, colouring, smoothness, purity and hardness of the paper layers used and in the bonding, binding and printing do not constitute a defect.
(4) In all cases, Sprick shall not be liable for defects that the buyer was aware of when the contract was concluded or that were not known due to gross negligence (Section 442 of the German Civil Code (BGB)). Furthermore, claims for defects of the buyer require that the buyer has complied with its statutory examination and notification obligations (Sections 377, 381 of the German Commercial Code (HGB)). In the case of goods intended for incorporation or other further processing, an examination must always be conducted immediately before processing. If a defect becomes apparent during delivery, examination or at any later point in time, Spring must be notified of this in writing without delay. In every case, obvious defects shall be reported in writing within 5 working days as of delivery, and defects not recognisable during the examination within the same period as of their discovery. If the buyer fails to properly examine and/or report defects, the liability of Sprick for defects that are not reported or not reported in good time or improperly is excluded pursuant to statutory provisions.
(5) If the delivered item is defective, Sprick can initially choose whether supplementary performance shall be realised through elimination of the defect (rectification) or by delivering a defect-free item (replacement delivery). The right of Sprick to refuse supplementary performance under statutory requirements remains unaffected.
(6) Sprick is entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a part of the purchase price considered reasonable relative to the defect.
(7) The buyer must give Sprick the time and opportunity required for the supplementary performance owed, in particular by handing over the goods that are the subject of the complaint for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to Sprick pursuant to statutory provisions. Supplementary performance does not include removal of the defective item or the reinstallation if Sprick was not originally obliged to install it.
(8) If a defect is actually evident, Sprick shall bear or reimburse expenditure required for the purpose of inspection and supplementary performance, in particular transport, travel, labour and material costs and any removal and installation costs pursuant to statutory provisions. Otherwise, Sprick is entitled to demand that the buyer reimburse costs arising from the unjustified request for removal of defects (in particular inspection and transport costs), unless the absence of defectiveness was not apparent to the buyer.
(9) In urgent cases (e.g. if operational safety is at risk or to prevent disproportionate damage), the buyer has the right to remedy the defect itself and to demand compensation from Sprick for expenses objectively necessary for this purpose. Sprick must be notified immediately of such self-performance, if possible in advance. The right to self-performance of this work does not exist if Sprick would be entitled to refuse corresponding supplementary performance pursuant to statutory provisions.
(10)
(11)
§ 9 Other liability
(1) Unless otherwise stated in these General Terms & Conditions, including the following provisions, Sprick is liable in the event of a breach of contractual and non-contractual obligations pursuant to statutory provisions.
(2) Sprick shall be liable for damages, regardless of the legal reason, within the framework of liability in tort in the event of wilful intent and gross negligence. In the case of ordinary negligence, Sprick is, subject to statutory liability restrictions (e.g. care in its own affairs, insignificant breach of duty), only liable
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from the breach of an essential contractual obligation (an obligation where its fulfilment enables proper execution of the contract in the first place, and where the contractual partner regularly relies and may rely upon compliance with it). However, the liability of Sprick in this case is limited to compensation for foreseeable, typically occurring damage.
(3) The limitations of liability resulting from Section 8 (2) also apply to third parties and breaches of duty by persons (including in their favour) where the blame for these are the responsibility of Sprick pursuant to statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee has been assumed for the quality of the goods and for claims of the buyer under the German Product Liability Act (Produkthaftungsgesetz).
(4) In the event of a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if Sprick is responsible for the breach of duty. A free right of termination of the buyer (in particular pursuant to Sections 650, 648 of the German Civil Code (BGB)) is excluded. In addition, statutory requirements and legal consequences apply.
§ 10 Limitation
(1) In deviation from Section 438 (1) Clause 3 of the German Civil Code (BGB), the general limitation period for claims arising from defects in material and title is one year from delivery. If an acceptance has been agreed, the limitation period commences with the acceptance.
(2) The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless application of the regular statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in individual cases. Claims for damages by the buyer pursuant to Section 8 (2) Clause 1 and Clause 2 (a) and under the German Product Liability Act (Produkthaftungsgesetz) shall only expire pursuant to statutory limitation periods.
§ 11 Data protection
(1) Sprick attaches great importance to compliance with data protection pursuant to the applicable provisions of the GDPR and the BDSG. All employees are instructed in accordance with statutory provisions and are obliged to maintain confidentiality when processing personal data. The parties are obliged to process personal data in compliance with statutory provisions.
(2) Personal data is processed for fulfilment and initiation of the contract. This is usually the name, address, telephone number and email address of the contact person at the customer.
(3) Personal data is processed according to the principle of purpose limitation (handling of the contract), meaning only for the purpose for which it was collected by the buyer and, and its confidentiality and integrity are protected by technical and organisational measures, especially measures against unauthorised accessing. Stored data is deleted following termination of the corresponding contractual relationship and taking into account retention periods, such as statutory (e.g. for commercial and fiscal law archiving obligations) or contractual (e.g. relating to warranty claims).
(4) The transfer of personal data to third parties beyond fulfilment and initiation of the contract shall only occur with corresponding legal authorisation or if the parties concerned have expressly consented to it.
(5) The data subject has the right to information about personal data stored about him or her and to the erasure, rectification and transmission of this data. If processing of the data is based on consent, the data subject has the right to revoke this consent with effect for the future. If processing of the data is based on a legitimate interest of Sprick, the data subject can object to further processing. In addition, the data subject can also complain to the responsible supervisory authority.
§ 12 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany applies to these Terms & Conditions and the contractual relationship between Sprick and the buyer to the exclusion of uniform international law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive, and also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the place of business of Sprick in Bielefeld, Germany. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). In all cases, however, Sprick is also entitled to take legal action at the place of fulfilment of the delivery obligation pursuant to these Terms & Conditions or a prioritised individual agreement, or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular those relating to exclusive responsibilities, remain unaffected.
§ 13 Non-participation in dispute settlement procedures pursuant to the German Consumer Arbitration Act (Verbraucherschlichtungsgesetz)
Sprick is neither obliged nor willing to participate in dispute settlement procedures in front of a consumer arbitration body. For this reason, Sprick shall not participate in dispute settlement procedures in front of a consumer arbitration body.
Status: April 2021
