General Terms and Conditions of Sale and Delivery
Metapaper GmbH & Co KG, Weimarstr. 35, 70176 Stuttgart, Germany (www.metapaper.io) – reference date: September 2017
1. All our contracts we, the Metapaper GmbH & Co KG, conclude with our customers (in the following also called “buyer(s)“), particularly our sales contracts, our works contracts (“Werkverträge”) and work supply contracts (“Werklieferungsverträge”) are based on these General Terms and Conditions. Different General Terms and Conditions or different contractual offers made by the buyer as well as subsidiary agreements and amendments to agreements made in line with these Terms and Conditions only become subject of the contract if we have expressly agreed them with or confirmed them to the buyer in the context of an individual agreement.
2. We offer products, services and information in the segments paper, print and related areas through our Internet presence metapaper.io and its subdomains. You can also order by telephone or send your order in writing and we will dispatch our goods from our registered place of business. We exclusively sell to businesses, public authorities and public bodies. Businesspeople are natural persons or legal entities or partnerships that have legal capacity. When they conclude a contract with us, they do it performing their commercial or self-employed occupation. We do not deliver to private consumers. Therefore, these General Terms and Conditions do not apply to consumers.
II. Conclusion of a contract
1. Our "offers", i.e. all information about goods and prices towards the buyer are always subject to changes in terms of price, delivery date and other content. They are therefore a non-binding invitation requesting the buyer to send the corresponding binding order.
2. The buyer can select from our range of products in our online shop and order via the button “Add to shopping basket”, collecting the products to be purchased in a so-called shopping basket. Via the button “Buy now”, the buyer submits a binding offer to buy the goods collected in the shopping basket. Before submitting the order, the buyer can change and review all data entered during this process at any time and correct any input errors. The order can only be submitted to us if the buyer accepts these General Terms and Conditions during the order process.
3. The contract is only concluded if we declare our acceptance of the order. Issuing an invoice to the buyer for the respective goods ordered by the buyer replaces this declaration of acceptance. Processing and completing the order within 10 days after receiving it can also replace the declaration of acceptance. In the case of several of the above-mentioned different ways of accepting an order, the contract is concluded with our first acceptance of the order. If the buyer has not received a declaration of acceptance, an invoice or a notification about the delivery or the actual goods within 10 days, the buyer is no longer bound to the order. In that case, we return payments already made by the buyer – if any – without delay.
4. A contract with us is also concluded if we prepare an offer that is formally binding for a concrete contractual agreement and the buyer accepts this offer without any changes. We are only bound to our offer within the terms of acceptance stated therein, or otherwise within the legal terms of acceptance. In the case of works contracts, we are generally bound by our written cost estimates for a period of four weeks from the date of the cost estimate.
5. If the buyer orders the products in our online shop, we will send an electronic confirmation of the receipt of the order. This confirmation of receipt is not a binding acceptance of the order. An order confirmation / issuing an invoice and the delivery of the goods are binding in this context.
6. The contents of the contract, particularly the scope of the delivery, the delivery date and the nature of the goods are solely determined by the content of the individual agreement with the buyer and the specifications therein. If no other specifications are expressly stated in the respective offer, the design of the goods and all prices are related to the items offered to the buyer, but not to any accessories or decoration that may be shown together with the goods. The design, the shapes or the colour shades of the goods and the scope of the delivery may be subject to alterations by the manufacturer until the actual delivery, insofar as – in due consideration of our interests – the alterations or differences are reasonable for the buyer.
Unless expressly different regulations are agreed, product specifications and descriptions solely serve to describe our service. We only grant a guarantee of quality and durability (see Section 443 BGB – German Civil Code) for the goods delivered by us if we expressly offered and agreed this guarantee. Any manufacturer’s guarantees shall remain unaffected. The following applies for all specifications of our goods: Where craftsmanship is involved in manufacturing products or in the case of natural products, it is always possible that these products may show minor differences between the goods presented online and the actual goods delivered to you. Within reason, this is deemed to be within the terms of the contract.
7. We reserve all rights of ownership and all copyrights for samples, cost estimates, drawings, draft designs, sketches, etc. Third-party access to these results of our work must not be granted without our prior written consent.
8. We charge for sketches, draft designs, test prints, samples, proofs and similar preliminary works requested by the buyer.
9. Processing the order and any contact in the context of processing this order generally takes place by e-mail. The buyer has to ensure that he provides a correct e-mail address and that no settings or filters prevent the buyer from receiving the e-mails related to the contract.
10. We are entitled to use images of designs or products made by us for the buyer as references and for advertising purposes, particularly on our Internet pages and in our other media and in third-party media, always observing any corporate and trade secrets in this context.
III. Prices and payment terms
1. The prices agreed with the respective buyer apply. Unless otherwise agreed, the statutory VAT applicable in Germany on the day the contract is concluded has to be added to the prices quoted by us.
2. The delivery charges agreed for the respective offer apply. Unless otherwise stated, we do not charge separate delivery costs for orders in our online shop for any deliveries within our delivery area. We only take out a transport insurance if specifically agreed with the buyer.
3. All payments are due and payable as agreed when concluding the contract. Unless otherwise agreed, payment is due immediately on delivery / with the acceptance of goods. If a cash discount has been agreed for a payment within a period individually agreed with the buyer, the date the amount is credited to our account is the relevant date for observing the payment term agreed for granting the cash discount. The right to deduct the cash discount is not granted if the buyer is in arrears with any payments due to be paid to us.
We accept the following payment methods for buyers with their registered seat in Germany: Prepayment, credit card payment (Visa, MasterCard), PayPal, direct debit and instant bank transfer. From buyers with a registered seat outside of the Federal Republic of Germany, we only accept the following payment methods: Prepayment, credit card payment (Visa, MasterCard), PayPal and instant bank transfer.
4. If a buyer’s payment is late, we are entitled to charge EUR 3.50 for every reminder sent by us. Moreover, we will charge the statutory interests for late payments. If we can prove a greater damage due to the delayed payment, we are entitled to claim for this damage.
5. The buyer’s late payment entitles us to hold back all deliveries still pending from business relations with the buyer until all liabilities have been fully paid.
6. If we accept bills of exchange and cheques, we only do this for the purpose of compliance. The buyer shall cover all related costs.
7. We only invoice by e-mail, unless otherwise agreed.
8. The buyer only has the right of setoff if we have acknowledged this buyer’s counter-claim or this counter-claim has become legally binding or if the counter-claims arises from the same contractual relationship. The buyer is only entitled to exercise a right of retention if the buyer’s counter-claim is based on the same contractual relationship.
IV. Delivery, delivery periods, completion and dispatch
1. Delivery is always ex works (EXW). The danger of accidental ruin and accidental deterioration of the goods as well as the danger of damages caused by delay are passed on to the buyer once the goods have been delivered to the shipping contractor, the carrier or any other person or institution commissioned to dispatch the goods.
2. Within reason, we are entitled to send partial deliveries while observing agreed delivery terms. We pay for any packaging and dispatch costs incurred by partial deliveries arranged by us.
3. Delivery dates and delivery periods stated in the confirmation of the order shall always be understood as non-binding estimates. Missing the envisaged delivery date does not mean a delay in the delivery. We are only delayed after receiving a written reminder sent by the buyer, stating a reasonable time limit for the delivery. All agreements of fixed delivery dates and transactions at a fixed date require our formal written consent. The decisive point in time for keeping to the delivery period is when the consignment of goods is handed over to the person in charge of transporting the goods or when this consignment of goods has left our warehouse in order to be delivered.
4. The beginning of the delivery period that we state in the order confirmation, irrespective of whether it is binding or non-binding, always assumes that all technical and logistic questions that require involving the buyer have been clarified. Compliance with our obligation to deliver is based on the timely fulfilment of the buyer’s obligations – particularly in terms of duties to cooperate – in accordance with the contractual terms. We reserve the right of defence of lack of performance of the contract.
5. If we are unable to deliver the ordered goods through no fault of our own and in spite of all efforts than can reasonably be expected of us because our supplier has not fulfilled his contractual obligations towards us, we are entitled to withdraw from the contract. However, we only have this right to withdraw from the contract if we have concluded a congruent hedging transaction (a binding and timely order of sufficient goods) with the respective supplier and are not responsible for the failure to deliver in any other way. In case of a withdrawal from the contract, we will inform the buyer without delay that the ordered goods are not available. We will immediately reimburse any payments already made by the buyer
6. If non-compliance with the delivery period is due to acts of nature (force majeure), industrial action or any other events outside our sphere of influence, the delivery period is extended appropriately. We will inform the buyer about the beginning and the end of such circumstances as soon as we can. Should such disruptions lead to a delay in the provision of our goods for more than four months, the buyer can withdraw from the contract. All other rights to withdraw from the contract remain unaffected.
7. The buyer is obliged to accept the purchased object or work. Should there be a default in acceptance, we are entitled to claim compensation for the damage incurred by us. This particularly includes additional transport and storage costs.
V. Liability for defects
1. A defect exists if the goods delivered by us are not in the agreed condition, if the goods are not suitable for the contractually agreed use or – insofar as no specific quality of the goods has been agreed – they do not have the quality that the buyer would expect from similar goods. The agreed quality is exclusively determined by the respective agreements made with us (order, order confirmations, potential changes made and confirmed by us at a later stage). Circumstances that affect the aesthetic appearance or the design of goods can only be considered a defect if they diverge from an agreement or if the intended use of the object is restricted because of these circumstances.
2. In case of defects, we offer subsequent improvement. We can choose between repairing the damaged object and sending a new, undamaged replacement for the damaged object. If our first attempt to remedy a defect is not successful, we are always entitled to a second attempt at subsequent improvement. If the subsequent improvement fails in spite of two attempts to remedy the defect or if we conclusively refuse it, the buyer is entitled to exercise the rights arising from his warranty (withdrawal, reduction in price, compensation for defects) in line with the statutory rules, inasmuch and insofar as no different rights are determined by these Terms and Conditions.
3. Upon receipt, the buyer is obliged to examine the goods for visible transport damages and in particular verify that their packaging is intact. A written notification has to be sent to us and to the carrier immediately upon receipt of the goods if there are any visible defects.
After the delivery has been handed over, the buyer is obliged to sample the delivered goods for visible defects (examination on receipt). If the delivery has visible defects, a written notification about these defects has to be sent to us immediately or at the very latest within a week after receiving the goods. If any defects not immediately visible during the examination on receipt are discovered, we have to be notified in writing within two weeks after discovering these defects. If it is only possible to verify that the goods are free of defects through test measures commonly used in the industry, the buyer has to carry out these measures immediately after the delivery of the goods within the necessary scope and immediately notify us about any defects discovered during these tests. If the buyer does not notify us immediately about any defects within the fixed periods defined above, we consider the goods as accepted. In that case, the buyer is not entitled to exercise the rights arising from his warranty covering the respective defects. Further obligations of businesses to examine and give notice of defects (see Sections 377, 381 HGB – German Commercial Code) remain unaffected.
4. If the buyer notifies us of a warranty claim, we can request a comprehensible description of the defect as well as photos and samples of the goods the buyer claims to be faulty. This enables us to check the notification of defects in terms of merit, impact and options for subsequent improvement. We are entitled to request that the faulty object is returned to us as the prerequisite for subsequent improvement.
5. The buyer has to compensate us for any costs for the examination and handling of unjustified notifications of defects.
6. For the sales of new goods and for works (“Werkleistungen”), the statutory period of limitation for defects is one year from the date of the delivery/the acceptance of the goods. For sales of used goods, we exclude any liability for defects. Our liability as stated under section VI. of these General Terms and Conditions, in particular with regard to claims for damages arising from injuries to life, body and health or from the breach of essential terms of the contract, from any damage according to product liability law as well as from any guarantees granted by us remains unaffected. The statutory period of limitation for the right of recourse according to Section 478 BGB (German Civil Code) as well as our liability for malicious nondisclosure of a defect also remain unaffected.
1. Our liability:
Towards the buyer, we are liable for damages caused with intent or through gross negligence by us, our legal representatives and/or agents in line with the statutory regulations. In cases of slight negligence, our compensation for damages is limited to the foreseeable damage typically incurred by the business transactions in question. For damages arising from the breach of essential terms of the contract (“cardinal duties”), compensation for damages for slight negligence is limited to the typical damage incurred and remains otherwise unaffected. In all other cases, liability for damages is excluded irrespective of the legal grounds. We are not liable for lost profit. The limitations/exclusions of our liability for damages stated above do not apply to damages arising from injuries to life, body and/or health or to our liability under a guarantee of quality. Our liability in line with the product liability law also remains unaffected. Any limitations of and exclusions from liability equally apply to our staff, our management bodies and our agents as well as to any claims for the reimbursement of expenses.
2. Liability of the buyer:
The buyer has to ensure that any specifications stated by him and designs and materials, particularly texts, graphic design contents, designs, layouts, sketches, colour designs and/or other contents and specifications provided by him do not infringe third-party rights or statutory rights if used by us within the scope of the contract. We are not obliged to carry out a legal check; this has to be done by the buyer. Should concrete signs point towards a violation of the law, we will immediately inform the buyer. We are entitled to interrupt the fulfilment of the service until a clarification of the issue. We are also entitled to base the continued provision of the service on a security issued by the buyer that will cover the estimated costs of the violation of the law.
The buyer exempts us from all third-party claims as well as any resulting costs for a necessary legal defence and all further resulting damages, inasmuch and insofar as third parties raise a justified claim against our company due to a violation of the law by the buyer.
VII. Retention of title and securities
1. We retain ownership of all goods delivered by us until the buyer has paid all outstanding amounts resulting from the business relationship with the buyer. In the case of a current account, retention of title serves as a security for the balance due.
2. Insofar as the value of all security interests exceeds the value of all our secured claims by more than 20%, we will release the respective percentage of security rights on request of the buyer. It is our responsibility to choose which securities are to be released.
3. Processing the delivered goods by the buyer is always done for us. If the delivered goods are processed, changed or combined with other items that are not in our possession, we acquire co-ownership of the new item to the extent of the amount invoiced for the delivered goods in proportion to the purchase price of the other goods at the time of processing them or combining them with our delivery. Any objects created through processing or combining are deemed to be goods subject to retention of title. In line with good commercial practice, the buyer keeps this new object safe on our behalf.
4. The buyer is entitled to sell the delivered item(s) in normal business transactions until this right is revoked. However, as a security, the buyer assigns all future claims and ancillary rights – including any claims to the balance – up to the amount invoiced for the processed goods that are subject to retention of title. Any specific declarations at a later stage are not necessary in this context. For this purpose, it is not relevant whether the goods have been processed or not. If the goods subject to retention of title are sold with other items without agreeing a unit price for these goods, the buyer assigns the proportion of the total amount of the claim to us that matches the amount invoiced by us for the goods subject to retention of title. This takes priority over the remaining claim. If substantial evidence of a legitimate interest is presented, the buyer has to provide us with the necessary information and hand over the necessary documents to us in order to assert the claim.
5. If retention of title applies, the buyer is not entitled to mix goods with his/her own or third-party goods in stock without being able to separate them again, as this extinguishes our sole ownership of the goods that are subject to retention of title.
6. Until ownership is transferred completely, the buyer shall mark the delivered goods stored on his premises as owned by us to ensure that they can be separated in the case of insolvency.
7. The buyer cares for the goods subject to retention of title in line with good commercial practice. In particular, he is obliged to take out a replacement value insurance against fire, water and theft at his own expense. Inasmuch as maintenance and service are necessary, the buyer has to carry out these works in a timely fashion and at his own expense.
8. While the retention of title applies, the buyer is not allowed to pledge the goods or transfer them by way of security.
9. The buyer is entitled to collect assigned claims resulting from selling the goods to his buyers.
10. In the case of an important reason, in particular in the case of a delayed payment, cessation of payment, opening of insolvency proceedings (insolvency, settlement deal, collective insolvency proceedings) or in the case of comparable well-founded indications that give reason to assume that a buyer is insolvent, we are entitled to revoke the buyer’s right to collect. Moreover, following a warning to disclose the assignment by way of security and the assignment of claims, we can disclose the assignment by way of security and utilize the assigned claims in compliance with a reasonable time limit.
11. If the buyer does not comply with his payment obligations, he is obliged on demand to inform any third-party buyers about the assignment, to provide us with the necessary information to enforce his rights and to hand over the relevant documents. We will release the securities held by us if their value exceeds the secured claims by more than a total of 20%.
12. If the buyer infringes his obligation to treat the goods subject to retention of title with care or if he delays any payments, we can claim the goods subject to retention of title. Taking these goods back and claiming the retention of title or levying execution upon the delivered goods does not imply a withdrawal from the contract, unless expressly declared by us. After a warning to utilize the goods after a period of two weeks, we are entitled to sell these goods in the open market or put them up for auction. The utilization proceeds shall be offset against the sales price.
13. In the case of levying execution, confiscations or other decrees or other third-party interventions, the buyer has to inform us immediately in writing to enable us to take legal proceedings according to Section 771 ZPO (German Code of Civil Procedure). Insofar as the third-party is not in a position to cover our court fees and extrajudicial costs for legal proceedings in line with Section 771 ZPO, the buyer is liable for the loss incurred by us.
VIII. Data privacy/Choice of law and jurisdiction
2. Towards all businesspeople, our place of fulfilment and sole place of jurisdiction is the registered seat of our business. However, we are also entitled to take legal proceedings against the buyer at his place of residence / registered seat of his business.
3. The contract is subject to the legislation of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.
IX. Severability clause
If one or several of the above mentioned clauses are invalid or become invalid over time, all other clauses remain unaffected hereof.
(* This English version is a translation of the legally binding German original. It is for informational purposes only.)