General Terms and Conditions of paul + paul GmbH

Version dated June 1, 2020

Article 1 Scope

(1) All deliveries, services, and offers by paul + paul AG, based in Altikon, Switzerland (hereinafter: „p + p“), are made exclusively under these General Terms and Conditions. These are an integral part of all contracts concluded by p + p with its contracting parties (hereinafter: „Client“) for the deliveries or services offered by p + p. They also apply to all future deliveries, services, or offers to the Client, even if they are not separately agreed upon again.
(2) The Client’s or third parties‘ terms and conditions do not apply, even if p + p does not expressly object to their validity in individual cases. Even if p + p refers to a letter that contains the Client’s or a third party’s terms and conditions or refers to such terms and conditions, this does not constitute agreement with the validity of those terms and conditions.


Article 2 Offer and Conclusion of Contract

(1) All offers from p + p are non-binding and subject to change unless expressly marked as binding or contain a specific acceptance period. Product descriptions in offers, brochures, and on p + p’s website are not binding. The contract between the parties is only concluded upon the written order confirmation from p + p and the scope confirmed therein.

(2) The legally binding agreement between p + p and the Client is the contract concluded between the parties, which arises from the order confirmation, including these General Terms and Conditions. The contract reflects all agreements between the contracting parties regarding the subject matter of the contract in full. Verbal promises made by p + p before the conclusion of the contract are legally non-binding, and verbal agreements between the contracting parties are replaced by the written contract, unless explicitly stated otherwise.

(3) Supplements and amendments to the agreements made, including these General Terms and Conditions, require written form for their validity. To meet the written form requirement under these General Terms and Conditions, telecommunication transmission, especially via fax or email, is sufficient.

(4) Upon request, p + p will create a release sample (white sample) and always a release PDF from the print data provided by the Client to describe and identify the delivery item, which will be made available to the Client for review and approval. The Client is responsible for verifying the release sample and the print data contained in the release PDF at their own discretion. In the event of their agreement, production commences upon approval. The parties agree that further review of the release samples and print data by p + p does not take place.

(5) p + p’s information regarding the delivery item (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data), as well as their representations, particularly handmade white samples and other models, are only approximate. They are not guaranteed characteristics but rather descriptions or designations of the delivery or service. Commercially customary deviations and deviations resulting from legal requirements or technical improvements are considered accepted. The same applies to the replacement of materials and components with comparable parts as long as they do not impair usability for the contractually intended purpose.

(6) p + p retains ownership and copyright to all offers and cost estimates provided by p + p and drawings, punching contours, white samples, print data, illustrations, calculations, brochures, catalogs, models, tools, and other documents and tools provided to the Client. The Client may not make these items or their content accessible to third parties, disclose them, use or reproduce them, either personally or through third parties, without p + p’s express consent. Upon p + p’s request, the Client must return these items in full to p + p and destroy any copies made if they are no longer needed in the regular course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the electronic storage of data provided for the purpose of standard data backups.


Article 3 Prices and Payment

(1) Deliveries are made at the prices stated in the order confirmation. The stated prices are net prices in Swiss Francs (CHF), plus the statutory value-added tax, and for export deliveries, plus customs duties, fees, and other public charges.

(2) Payments are due 30 days after the invoice date (the date of the invoice is decisive), unless otherwise agreed, without any deduction for cash discount. If the payment deadline is exceeded, the Client is in default without the need for a reminder. In this case, p + p, without prejudice to all other rights, shall charge default interest at a rate of 5% per year on late payments. Payments can only be made directly to p + p into one of the bank accounts specified on the invoice.

(3) The payment of customary postage is immediately due and payable to p + p as an advance payment upon separate invoicing (advance invoice), net and without cash discount.

(4) Offset against counterclaims of the Client or the retention of payments due to such claims is only permissible to the extent that the counterclaims are undisputed or legally established.

(5) p + p is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, p + p becomes aware of circumstances that significantly reduce the creditworthiness of the Client and jeopardize the payment of outstanding claims by p + p from the respective contractual relationship (including other individual orders for which the same general terms and conditions apply). Non-timely payment of a previous invoice can also be considered a risk to creditworthiness.


Article 4 Delivery and Delivery Time

(1) Deliveries are made according to the agreed delivery conditions.

(2) Deadlines and dates for deliveries and services promised by p + p are always approximate unless a fixed deadline or date has been expressly agreed upon. If shipment has been agreed (obligation to deliver), delivery periods and dates refer to the time of transfer to the carrier, freight forwarder, or another third party entrusted with transportation. If the Client picks up the goods themselves (obligation to collect), delivery periods and dates refer to the time of notification of shipment readiness.

(3) p + p is entitled, without prejudice to its rights arising from the Client’s delay, to request an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Client does not fulfill its contractual obligations towards p + p.

(4) p + p is not liable for the impossibility of delivery or for delivery delays, insofar as these are caused by force majeure or other unforeseeable events at the time of contract conclusion (e.g., operational disruptions of any kind, difficulties in procuring materials or energy, transportation delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary government approvals, government measures, or the absence, incorrect or untimely delivery by suppliers), delivery or performance deadlines will be extended or delivery or performance dates will be postponed by the duration of the hindrance plus a reasonable lead time.

(5) p + p is entitled to partial deliveries if:

• The partial delivery is usable for the Client within the scope of the contractual purpose, and/or
• Delivery of the remaining ordered goods is ensured, and
• The Client does not incur significant additional effort or additional costs as a result (unless p + p agrees to bear these costs).

(6) If p + p is in delay with a delivery or performance or if delivery or performance becomes impossible for any reason whatsoever, p + p’s liability is limited to damages in accordance with Article 8 of these General Terms and Conditions.

(7) If deliveries are made on reusable pallets and the pallets are not returned or exchanged free of freight charges within three weeks, p + p will charge the non-returned or non-exchanged pallets at the current market price. Ownership of the pallets only transfers to the Client after payment of the purchase price.

(8) For production reasons, p + p reserves the right to make over- or under-deliveries of up to 5% of the ordered quantity. Billing is based on the actual quantity delivered.


Article 5 Place of Performance, Shipment, Packaging, Transfer of Risk, Acceptance

(1) Unless otherwise specified, the place of performance for all obligations arising from the contractual relationship is the place of dispatch (location of transfer to the carrier, freight forwarder, or other third party entrusted with transportation) for obligations to deliver and the location for which readiness for collection has been communicated for obligations to collect.

(2) The method of shipment and packaging are at the discretion of p + p.

(3) Risk passes to the Client at the latest upon the transfer of the delivery item (with the start of the loading process being decisive) to the carrier, freight forwarder, or another third party designated to carry out the shipment. This also applies if partial deliveries are made or if p + p has undertaken other services. If the shipment or transfer is delayed due to a circumstance for which the Client is responsible, risk passes to the Client from the day on which the delivery item is ready for shipment, and p + p has notified the Client.

(4) Storage costs from the transfer of risk or upon the expiry of the contractually agreed storage period shall be borne by the Client. At the end of the contractually agreed storage period, the remaining value of the goods will be invoiced by p + p immediately, and the goods will be delivered after prior notice.

(5) In case of contractual agreement for further storage by p + p, storage costs are CHF 18.00 per Euro pallet and started month. These costs will be invoiced upon delivery and are due for payment without deduction 10 days after the invoice date.

(6) The shipment is insured against theft, breakage, transport damage, fire, water damage, or other insurable risks only at the express request of the Client and at the Client’s expense.

(7) If acceptance is required, the delivery is considered accepted when:

• The delivery is completed,
• p + p has notified the Client of this fact, pointing out the acceptance by default according to this Article 5 (7) and has requested the Client to accept,
• Three working days have passed since the delivery, or the Client has commenced use of the delivery item, and in this case, three working days have passed since delivery, and
• The Client has failed to accept within this period for any reason other than due to a defect notified by p + p that renders the use of the purchased item impossible or significantly impairs it.


Article 6 Warranty, Defects

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(2) The warranty period according to Article 6 (1) does not apply to inherently short-lived promotional items, especially those containing electronic components or seasonally short-lived items. In this case, the warranty period is limited to the usual lifecycle of the contract items.

(3) The delivered items must be promptly examined by the Client or the third party designated by them immediately after delivery. They are deemed approved by the Client with respect to obvious defects or other defects that would have been recognizable with immediate and careful examination if p + p does not receive a written complaint within five business days after delivery. With respect to other defects, the delivered items are deemed approved by the Client if p + p does not receive a written complaint within five business days after the time the defect was discovered;; however, if the defect was already recognizable to the Client under normal use at an earlier time, this earlier time is decisive for the start of the complaint period. Upon request by p + p, a disputed delivery item must be returned to p + p at the expense of the Client. In the case of justified defects, p + p will reimburse the cost of the cheapest shipping method;; this does not apply if the costs increase because the delivery item is located at a location other than the intended place of use.

(4) The warranty is excluded if defects or faulty production are due to the fact that the Client approved faulty approval samples and/or print data based on which production was carried out.

(5) The warranty is also excluded for minor or insignificant deviations of the deliveries from the provided white samples or models (e.g., regarding color, material thickness, and execution) if such deviations are customary in the trade. Whether a deviation of the goods is customary in the trade, p + p refers in particular to the specified tolerances of the FFI Fachverband Faltschachtel-Industrie e.V. test catalog.

(6) In the case of color reproductions in all printing processes, slight deviations from the original are considered as contractually agreed performance. The same applies to the comparison between proofs and production prints. Printouts, samples, or screen views provided by p + p are only intended for checking data and have no color binding for printing.

(7) The printing of the EAN barcode is done according to the state of the art and taking into account the relevant implementation rules of the CCG (Koorganisation, Spichernstraße 55, 50672 Cologne). Further guarantees, especially statements about reading results at the point of sale, cannot be provided due to possible influences on the barcodes after leaving our factory and the lack of uniform measurement and reading technology. Warranty for reading errors in such EAN code imprints on cartons from p + p is excluded.

(8) In the case of material defects in the delivered items, p + p is obligated and entitled to choose between rectification and replacement within a reasonable period. If the first attempt at subsequent performance fails, p + p is obligated and entitled to a second attempt at subsequent performance under the same conditions as under Article 6 (8) sentence 1. If the second attempt at subsequent performance also fails, the Client can withdraw from the contract or reduce the purchase price reasonably.

(9) If a defect is based on the fault of p + p, the Client can demand damages under the conditions specified in Article 8.

(10) In the case of defects in materials from other manufacturers, which p + p cannot eliminate for licensing or actual reasons, p + p will, at its discretion, assert warranty claims against the manufacturers and suppliers on behalf of the Client or assign them to the Client. Warranty claims against p + p exist in such cases only under the other conditions and in accordance with these General Terms and Conditions, if the judicial enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is hopeless. During the duration of the legal dispute, the limitation period for the Client’s warranty claims against p + p is suspended.

(11) The warranty is void if the Client, without the consent of p + p, modifies the delivery item or has it modified by third parties, and this makes rectification of defects impossible or unreasonable. In any case, the Client shall bear the additional costs of rectifying the defects resulting from the modification.

(12) In individual cases, if agreed with the Client, the delivery of used items is made without any warranty for defects.

(13) The assurance and verification of the suitability of the delivered goods for the intended use of the Client and the compliance with special regulations, such as food law, are outside the control of p + p and are therefore the sole responsibility of the Client. The Client must therefore check the conditions for the safe use of p + p products early on and provide p + p with the permissible material or other specifications for use.

(14) All warranties and guarantees that are not explicitly mentioned in these General Terms and Conditions are excluded.


Article 7 Intellectual Property Rights

(1) The parties agree that p + p is not obligated to verify the Contract Item for the existence of third-party rights or to conduct corresponding searches.

(2) The Client assumes responsibility and liability in accordance with Article 8 of the General Terms and Conditions for ensuring that the Contract Item is free from third-party rights when placed on the market. This does not apply if the management or responsible employees of p + p were positively aware of the existence of third-party rights, such as patents, trademarks, designs, or utility models, during the conceptualization or the commencement of the production of the Contract Item.

(3) If the Client violates the obligation under Article 7 (2) of these General Terms and Conditions and p + p is consequently claimed against by third parties, the Client agrees to indemnify p + p against such claims and related costs.

(4) Each contracting party shall promptly notify the other contracting party in writing if it is subject to claims for the infringement of third-party rights.

(5) Drafts, dies, negatives, plates, printing rollers, molds, films, and digital data created by p + p shall remain its property, even if the customer has financially contributed to their creation. Other agreements remain reserved.

(6) Plans, drawings, sketches, and other property of the Customer are stored at p + p at the Customer’s risk.

(7) Storage of the materials mentioned in Article 7 (5) and Article 7 (6) ends two years after their last use. After the expiration of this period, unless otherwise agreed in writing, p + p has the right to destroy these materials.


Article 8 Liability

(1) The liability of the parties is limited as follows:

(a) Liability is limited to intent and gross negligence, subject to further mandatory legal provisions. Liability for auxiliary persons is excluded.

(b) The parties are liable, regardless of the degree of negligence, for any injury to life, limb, and health of persons of the other party, as well as in accordance with the Product Liability Act in connection with or in fulfillment of obligations arising from the contractual relationship.

(2) In the event of data loss caused by p + p, p + p shall be liable only for the costs of data backup and restoration, which would have arisen even with proper data backup, within the scope of Article 8 (1) of these General Terms and Conditions.

(3) The parties are obligated to prevent and mitigate damage to the extent reasonable.

(4) Insofar as p + p provides technical information or acts in an advisory capacity, and such information or advice is not part of the contractually agreed scope of services, this is done free of charge and excludes any liability.

(5) The above exclusions and limitations of liability also apply in the same manner to the benefit of the organs, legal representatives, employees, and other agents of p + p.


Article 9 Retention of Title

(1) Until full payment for the delivery and payment of all current and future goods deliveries within the business relationship with the client, including all ancillary claims, the delivered goods and pallets shall remain the property of p + p (hereinafter: reserved goods). Checks, bills, and assignments are accepted only on account of performance and are considered as payment only upon unconditional redemption.

(2) The client shall, at their own expense, adequately insure the reserved goods against theft, fire, and other property damage, store them separately, safely, and properly, handle them with care, and, upon request from p + p, mark them. Claims from an insurance event against the insurance company are hereby assigned to p + p to the amount of the value of the reserved goods.

(3) If the client is in default of payment or is insolvent or fails to fulfill other material contractual obligations, p + p may demand the surrender and realization of the reserved goods. Furthermore, the client must transfer the collection of claims arising from the sale of reserved goods to p + p. The client must tolerate the removal of the reserved goods and allow p + p to enter their offices and business premises. The client must fully support p + p in the collection of claims and provide p + p with all necessary information and documents. These measures do not constitute a withdrawal from the contract. However, if p + p has set a deadline and sells the goods thereafter, the client is liable for the difference between the purchase price and the proceeds from the realization. In addition, the client bears the costs of the repossession.


Article 10 Applicable Law / Jurisdiction

(1) The contractual relationship between p + p and the client is governed by Swiss substantive law, excluding conflict of law rules and international agreements, particularly the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980).

(2) All disputes arising from or in connection with the contractual relationship between p + p and the client shall be decided in the first instance exclusively by the competent courts at the registered office of p + p. Article 11 Formal Requirements Amendments and additions to the contractual relationship between p + p and the client must be made in writing. This also applies to changes in the formal requirement itself.


Article 12 Severability Clause

(1) If individual provisions of the contractual relationship between p + p and the client are or become wholly or partially invalid, the validity of the remaining provisions shall not be affected.

(2) In such a case (Art. 12 (1)), the parties shall replace the invalid provision with a legally valid provision that comes as close as possible to the economic result that the parties intended to achieve with the invalid provision.