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Terms & Conditions - Rebhan FPS Kunststoff-Verpackungen GmbH

1 General remarks

The following General Conditions of Sale, Delivery and Payment apply to the present legal transaction as per the overleaf or attached confirmation of order (or offer, delivery note or invoice). They also apply to ongoing business relations and to any future legal transactions - in addition to any conditions or agreements especially set out in our offers, confirmations of order and delivery notes. Should individual clauses within these Conditions of Sale, Delivery and Payment be or become ineffective, then the other clauses shall retain their validity without restriction. Any opposing conditions of business drawn up by our customers shall only bind us if we have expressly recognised them. If such recognition is not expressly made, then the validity of any opposing conditions of business drawn up by our customers is herewith gainsaid.

2 Conclusion of contract

(a) All our tenders are subject to alteration. All orders require our written confirmation which, in the case of immediate delivery of the goods ordered, will be included with the invoice mailing. A contract of sale only comes into being with that confirmation, the content of which is solely decisive. Agreements made by word, telephone or telecommunication are binding on us if we have confirmed them in writing.

(b) Unless a delivery with a fixed calendar date is expressly agreed, any delivery times we give are always deemed to be approximate and on condition that production is unimpeded. If, after the confirmation of order has been made, the customer should demand changes to the order, then the delivery period shall only commence with the confirmation of the change. Specifications and on-call deliveries are to be arranged by the customer in such good time that there is enough time available for production and delivery by the actual date of inspection and acceptance.

(c) The customer is aware that we produce to order. For this reason, [and] due to production technology constraints, the order quantity may, in the absence of any special agreement as to the admissibility of quantity deviations, be deemed to be only an approximate quantity. We will adhere to the order quantity as far as possible; however, delivery quantities of plus or minus 10% are permissible. This also applies to part deliveries from on-call deliveries.

(d) Production-caused deviations in size, weight, colour hue and features are permissible within the realms of prevailing commercial practice. Any details we give as to weights and measurements are to the best of our knowledge.

(e) We shall not replace any samples and models placed at our disposal and subsequently lost or broken unless wilfulness or gross negligence is evident.

(f) On the basis of his or her own regulations, the customer is responsible for ensuring that the moulds, colours, decorations, sizes and weights they order do not infringe third-party property rights. In terms of relation inter se, the customer herewith agrees to release us from any damages and costs that may arise in such cases of any violation of third-party rights provided that there is no fault on our part in the form of gross negligence or wilfulness.

3 Place of performance / shipping

(a) Place of performance for our deliveries and services is our seat of business in Stockheim or our respective distribution centre.

(b) If the customer wants the goods to be shipped to another place, then he or she shall bear the ensuing cost of transport and transport risk. We determine shipping type and shipping route if the customer has not issued any explicit instructions.

(c) With goods sold for export, the customer accepts responsibility for shipping them to the area outside customs frontier and for their application in the area outside customs frontier. If so requested, the customer shall provide us with the necessary proof.

(d) If "carriage-paid" delivery is agreed, then we pay for freight to the station of destination according to tariff which, in the absence of exact details from the customer, we will ascertain to the best of our judgement. Ancillary costs such as cartage and area freight reception etc. are to be borne by the customer. Deliveries (including part deliveries) under a net goods value of € 2,000.00 are all ex-works. The freight costs to be calculated in the case of deliveries under a net goods value of € 2,000.00 are calculated on the basis of the freight charges valid on the day of invoicing.

4 Services and delivery delay

(a) Delivery delays due to force majeure, strikes, production downtime, lack of raw materials, state intervention and, also, due to events which complicate delivery substantially and for which we cannot be held responsible shall entitle us to the option of extending the delivery period by the length of hindrance and by a suitable running-in period - this, in addition to withdrawing from the contract pursuant to Section 4(c). Should the disruptions be lengthy, then we will notify the customer of the beginning and end of the delivery delays as soon as we know of them.

(b) To the exclusion of claims for damages, we are entitled to withdraw from the contract if we have concluded a congruent covering transaction with our suppliers and if, through no fault of our own, we have been let down by them and if we have taken all reasonable endeavours to acquire the materials that would be needed to complete the order.

(c) Delays in delivery and performance for which we cannot be held responsible and which complicate our delivery substantially or render it impossible - e.g. force majeure, industrial action, lock-out, impositions by authorities etc. - shall entitle us to withdraw from the contract.

5 Prices / payment delay

(a) In the absence of any other agreement, the customer shall pay the prices agreed at the time of order placement. In the absence of any other agreement, agreed prices are understood as carriage-paid including standard packing to the place of destination within the Federal Republic of Germany and/or carriage-paid including standard packing to the German border. Any extra costs caused by subsequently changing the kind of packing, the transport route, the place of destination or caused by similar circumstances affecting the freight costs shall be borne by the customer unless the extra costs can be attributed to wilfulness or gross negligence on the part of our company or parties acting for us.

(b) In the absence of any other agreement, our invoices are to be paid net within thirty days of invoice date.

(c) If the payment deadline (thirty days after invoice date) is not met, then the customer is deemed to be in arrears without any requirement on our part to issue special reminders. That being the case, we are entitled to charge arrears interest to the amount of 8% above the current base lending rate.

(d) We are entitled to carry out part performances. In such cases, the customer is required to pay for the part performance so rendered provided that part performance is of economic use.

(e) The off-balancing of accounts against our claims is excluded if the counterclaim does not have legal force if it has not been disputed by us.

(f) If the customer is in payment arrears, then all our claims against that customer are immediately due for payment. Further deliveries will only be made against advance payment. In such cases, we reserve the right on principle to change our conditions of payment to "deliveries against advance payment". Should the buyer not meet the advance payment deadline, then we shall be entitled to withdraw from the contract and to submit a claim for damages.

6 Acceptance of goods

(a) If goods from our warehouse are kept ready at the customer's disposal or sold for manufacture without shipping arrangements (on-call deliveries), then, in the absence of any special agreement, the customer is required to accept the goods within six weeks of notification of availability.

(b) If the customer delays the acceptance of goods correctly delivered or made-available, then we are entitled, after placing an extended deadline of at least ten days, to withdraw from the contract and make a claim for damages.

7 Retention of title (RoT)

(a) Delivered goods remain our property until full payment has been made.

(b) We retain the title on all the goods we deliver and produce until our total claim (and that includes claims that arise in, or are determined by, the future) relating to a business relationship has been paid. This shall also apply if the sale price has been paid on certain deliveries designated by the customer since the RoT serves as security for our balance claim.

(c) If the customer processes, combines or mixes reserved goods with other goods, then we are entitled to co-ownership proportionate to the new object in proportion of the invoice value of the reserved goods to the invoice value of the other goods used.

(d) The customer is entitled to resell the reserved goods in the course of normal business operations. Any claims with regard to the reserved goods arising from a resale are here and now conceded to us by the customer as a security. They serve as a security to the same extent as the reserved goods. If the customer resells the reserved goods along with other goods not bought from us, then the claim from the resale is ceded to us in proportion to the invoice value of our goods against the other sales goods. We accept this cession and authorise the customer to direct-debit the claims ceded to us for his or her account in his or her name. If the customer is in payment arrears with claims from the business relationship, then we are authorised to prohibit the customer from reselling the reserved goods. Furthermore, we are also authorised to cancel the direct-debit for ceded claims. The customer is then obliged to immediately notify his or her purchasers of the cession to us and to provide us with all the information required for debiting the claim and to issue all original documents relating to the matter.

(e) If we make use of our RoT by taking the reserved goods back, we then have the right to freely sell the goods or have them auctioned. We reserve our right to exercise statutory claims for damages, in particular lost profit.

(f) If the value of the securities (reserved goods and ceded claims) existing for our respective total claim exceeds the value of our due claims by more than 20%, then, at the request of our customer, we shall be obliged to release respective securities of our own choosing.

(g) The customer is to notify us without delay of access by third-parties to the reserved goods - especially by way of impounding or confiscating. Any ensuing intervention costs are to be borne by the customer provided we were not to blame for their emergence.

8 Warranty

(a) If the object purchased reveals a material or legal deficiency, we will, of our own choosing, either supply a replacement or carry out repairs - initially to the exclusion of other warranty claims by the customer. Several repairs or several replacements are permissible. If, after a reasonable time, the repair or the replacement fails again, then, pursuant to legal requirements, the customer can withdraw from the contract or reduce the purchase price and, with due consideration for the liability restrictions set out under Section 9, demand damages or reimbursement of all futile outlay.

(b) If the contract is a commercial translation as defined by the German Commercial Code [German abbreviation: HGB], then Section 377 HGB shall apply. The complaint must be made in writing. Warranty claims due to non-obvious defects expire if the customer does not register his or her complaint within one year of becoming aware of said deficiency. Legal or agreed statues of limitation are not extended as a result.

(c) Warranty claims on the part of the customer expire within one year of the goods having been collected or delivered.

9 Liability

(a) We accept liability ...

    - not in the case of contractually atypical damage arising where gross negligence on our part or that of our executives was the cause;

    - in the case of gross negligence by ordinary parties acting for us only to the amount of the purchase price of the goods in question;

    - not by dereliction of duty on our part, by one of our executives or by one of our subcontractors in the event of slight negligence.

(b) The restrictions on liability in Clause (a) do not apply if a cardinal obligation was violated or if there was injury to life, limb and health.

10 Venue

(a) If the customer has been entered as a businessman or woman on to the trade register or if he or she is one of the persons named in Section 38 ZPO (Rules of Civil Procedure), for either party the court with jurisdiction over any disputes arising from the contract – and thus any relevant legal relations – shall be Kronach or, alternatively, if we so choose, the court with jurisdiction over the customer's seat of business.

(b) Kronach shall also be the court with jurisdiction if, at the time of commencing the action, the customer has transferred his or her domicile or customary place of abode outside the area of application of the law of the Federal Republic of Germany or if the customer's domicile or customary place of abode is unknown.