General Terms and Conditions (Delivery and Service Conditions)

DELIVERY AND SERVICE CONDITIONS

1. GENERAL

  1. a) These terms and conditions form an integral part of all offers and contracts concerning deliveries and services, in both current and future business. Agreements which deviate, in particular conflicting terms and conditions of our customers, as well as subsidiary agreements require our express written consent in order to form an integral part of the contract.
  2. b) The law of the Federal Republic of Germany shall apply exclusively. The use of the uniform UN Purchasing Law (CISG) is excluded.
  3. c) Our offers and cost estimates are subject to confirmation.
  4. d) Contracts and changes with us can only be made and only take effect if we have accepted orders/contracts from our customers in writing, if we have agreed additions or change requests with our customer in writing, or if deliveries or services have been made to the customer.
  5. e) We are only obliged to make the expressly specified deliveries and/or services laid out in our offers, cost estimates and/or confirmation of orders.
  6. f) All samples and documents provided to our customers (e.g. descriptions, drawings, illustrations, colour, dimension and weight data) are approximate values. We are able to change these samples and documents at any time and permitted to make the deliveries – e.g. recipe changes – as long as these changes are reasonable for our customers. With standardised products, the tolerances permitted on the standard sheets shall apply.
  7. g) We retain the ownership, copyright and/or other commercial property rights to all samples and documents referred to in item 1. f) above. Without our written consent, these samples and documents may not be used by our customer in any other way than as part of the contract concluded with us, in particular they may not be reproduced or made available to third-parties. On request, they must be returned to us by our customer without delay.
  8. h) All print proofs and tools provided by us for the production of packaging are a binding basis for the creation and processing of the offer, the cost estimate and/or the order confirmation and therefore form a part of the contract.
  9. i) All claims by the customer against us from the business relationship cannot be transferred to a third party without our written consent. Art. 354 a of the German Commercial Law (HGB) remains unaffected. The customer may only offset claims against us against undisputed or legally-established claims. The customer is only permitted to exercise a right of retention as long as his counter-claim is based on the same contractual relationship.

2. PRICES

  1. a) Out prices are made in EUR ex works/warehouse plus VAT at the applicable rate as well as plus all transportation costs such as packaging, freight, transport insurance and customs duties, for example.
  2. b) We are entitled to demand the respective price from our customers for the agreed delivery/service as would be invoiced at a higher price to other customers at the time of the delivery/service if a period of more than 4 months has passed since the contract was concluded with the customer and the delivery/service has been made.

3. DATES AND DEADLINES

  1. a) Dates and deadlines are only binding for us as far as they have been specifically agreed with our customers in writing. We are not in default of our delivery and service obligations before a reasonable period of grace has been set to us.
  2. b) Partial deliveries and services on our part are permitted.
  3. c) We are entitled to withdraw from the contract with our customer if our supplier, for reasons which we are not responsible for, cannot deliver or delivers late so that we are not able to meet our obligations to our customer on time or at all.
  4. d) In the event of force majeure, or exceptional circumstances such as industrial action, governmental action, epidemics, natural disasters or traffic problems, whether or not they occur to us or to our suppliers, releases us from our responsibilities to our customers for the duration of their effect and, if this makes it impossible provide the service for us, completely from our delivery / service obligation.

4. INVOICES AND PAYMENTS

  1. a) Our claims for payment against our customers become due at the acceptance / approval of the delivery/service object by our customer, however, at the latest when leaving our factory/warehouse. If there are doubts about the solvency or creditworthiness of the customer at the time the contract is concluded, we can demand payment in advance.
  2. b) Drafts can only be accepted by us after prior written agreement and only under the reservation of their being bankable. Drafts and cheque amounts will only be credited to the customer if their value is unconditionally available for our use. Any resulting costs are to be reimbursed to us.

5. PLACE OF PERFORMANCE, RISK TRANSFER AND SHIPPING

  1. a) Place of performance for our deliveries and services is the plant/warehouse specified in our offer, our cost estimate and/or our order confirmation. If a plant/warehouse is not specified, the place of performance is the headquarters of GETI WILBA GmbH & Co. KG.
  2. b) The risk of accidental loss or accidental deterioration of the goods/services provided passes to the customer with the acceptance / approval by the customer, at the latest when they leave our plant/warehouse. This applies to partial deliveries/services too. If we have taken on the transportation, the risk of the accidental loss or accidental deterioration of the goods/services provided by us, irrelevant of what costs the transportation incurs, passes to the customer when delivered to the transport company (freight forwarding, delivery firm, post office, railway) or to our driver.
  3. c) The customer must make a claim for all damages resulting from the transport immediately after receipt of the delivery with the freight carrier.
  4. d) All shipments will be uninsured, unless the customer expressly requests insurance at his own expense. The insurance costs will be charged to the customer in addition, as will the packaging required for transport. Transportation and other packaging will be taken back by us in accordance with the provisions of the packaging regulations; swappable multi-use pallets are excluded.
  5. e) If the transfer of risk to our customer (item 5. b) is delayed by reasons for which our customer is responsible, the risk of accidental loss or of accidental deterioration passes to the customer at the latest when the customer is informed of the "ready for shipping" status.

6. RETENTION OF TITLE

  1. a) We retain the title to the goods supplied by us to our customer until full payment has been received. The title only transfers on complete fulfilment of all claims resulting from the business relationship – irrespective of the legal reason. The customer must keep any reserved goods separate from other objects and must mark them as being our property.
  2. b) The customer may process and sell reserved goods in his ordinary course of business, as long as he meets the payment requirements when they are due. Pledging or transfer of title of reserved goods by our customers is not permitted. In the event that third-parties attempt seize the reserved goods, the customer should point out the fact that they are owned by us, inform us immediately and will bear the cost of a legitimate intervention against the seizure.
  3. c) If the customer processes the reserved goods, we acquire ownership of the intermediate and final product immediately. When the claim has been paid, the ownership passes to the customer. The same applies if processed by combining and mixing with substances which belong to the customer or which the customer has acquired from a third party under simple reservation of title. If the additional materials are subject to the extended retention of title by a third party, we obtain the co-ownership of the intermediate and end product, in proportion to the value of our goods on one side and the value of the third-party's goods on the other. Our resulting (co-)ownership is guaranteed by the customer without charge.
  4. d) The claims resulting from a resale or any other reason (insurance, unauthorised handling) with regards to the reserved goods against third parties are assigned by the customer to us with the conclusion of the relevant contract for security purposes to their full extend (see the rule under item 6. e).
  5. e) On the request of our customer, we will transfer the ownership entitled to us on the reserved goods and claims assigned to us for security purposes back to the customer to the extent to which the value of the reserved goods exceeds the total claims against the customer by more than 20 percent.

7. PRINT TEMPLATES AND TOOLS

  1. a) Print templates and tools for the manufacture of packaging which is done by us or on our behalf by a third party, are exclusively our property. The customer has not claim thereon even if he is accepted to pay part of the costs for their manufacturer or has paid the full cost, unless expressly agreed otherwise. Our print templates and tools may only be used in business transactions with us.
  2. b) In the case of customer-owned print templates and tools, and/or print templates and tools leant to the customer to produce packaging, our responsibilities for storage and care are afforded the same care as to our own affairs. Costs for maintenance and insurance are borne by the customer. Our responsibilities expire if, after the completion of the order and after a reasonable period of grace, the customer does not pick up the print templates and tools. As long as the customer has not met his contractual obligations to us fully, we will have a retention right to the print templates and tools in any case.

8. CLAIMS FOR DEFECTS

  1. a) Defects must be reported to us by the customer immediately after receipt of the delivery/service, hidden defects within eight calendar days after their discovery. The decisive factor for compliance with the deadline is the receipt of the complaint by us.
  2. b) In the event of a defect, the customer must give us an opportunity to rectify the issue within a reasonable deadline, according to our choice by either rectifying the defect, delivering a defect-free item or the production of a new piece of work.
  3. c) Claims by the customer against us to reimburse expenses necessary for fulfilment, in particular, transportation, travel, labour and material costs are excluded if the expenses increase due to the fact that the delivered object/service is subsequently performed at a different location than the customer's branch, that is unless this provision corresponds to the intended use of the delivered object/service.
  4. d) Statutory recourse by the customer against us only exist insofar as the customer with its customers has not made or agreed any warranty claims and rights which exceed the statutory requirements. The contents of item 8. c) shall also apply to the scope of the recourse claims by the customer against us.
  5. e) In the event of defects, the customer shall be entitled to retain appropriate payments which are in a reasonable proportion to the defects which have occurred.
  6. f) The limitation period for material and legal defects is one year which begins from the transfer of risk. This does not apply if and in so far as articles 438 para. 1 no. 2, 634a para 1 no. 2, and 651 GCC (German Civil Code BGB) apply in terms of longer deadlines, the defect was fraudulently concealed or if one of the liability cases referred to in item 9. a) (follows) is applicable.
  7. g) Our obligation to pay damages is based on the contents of item 9, below.
  8. h) If the delivery has not been properly stored by our customer, particularly for frozen goods where the deep-freeze chain of minus 18 °C has been interrupted – subject to item 9. a) – all claims for material and legal defects are excluded.
  9. i) The above regulations do not change the burden of proof to the detriment of our customer.

9. LIABILITY

  1. a) Claims for damages and reimbursement of expenses (hereinafter referred to as "damage claims") by our customer, irrespective of the legal basis, are excluded unless they result from the regulations of the product liability law, result from a deliberate or negligent violation of contractual or statutory obligations by us, concern the health or physical damage to the customer as a result of a breach of obligations by us, the assumption of a guarantee for the existence of a property or as a result of the breach of an important contractual obligation by us.
  2. b) In the event of a breach of an important contractual obligation by us, the claims by the customer are limited to the contract-typical, foreseeable damage as long as there has been no intent or gross negligence, it does not concern the health or physical damage, or due to the acceptance of a guarantee of a property has been accepted by us.
  3. c) If our deliveries are made in packaging supplied by the customer, or they were made with customer-owned print templates and tools and/or such templates and tools have been loaned to us by the customer or manufactured print templates and tools have been manufactured on the basis of specifications provided by the customer, subject to item 9. a), we do not accept any liability that the regulations applicable for the client's industry about labelling and handling of the goods or any third-party rights like property, copyright and/or other commercial protective rights are observed. Checking if such are required, subject to the provisions of item 9. a), is the sole responsibility of the customer. The customer will indemnify us from claims of any kind which are made against us by a third party, and will compensate us for any damages.
  4. d) If our deliveries are made in packaging supplied to us by the customer or which we have prepared using customer-owned print templates and tools and/or print templates which have been loaned to us by the customer or using print templates and tools which are based on customer specifications, we do not accept liability for any claims resulting from the functional capability of the packaging and for other defects, as long as they result from the customer's specifications, to the extent and as far as there is no liability resulting from item 9. a). Otherwise, however, we are obliged to inform the customer immediately – as far as can be detected – about the impossibility of the technical implementation of the print templates.
  5. e) Where liability is excluded or limited, this also applies for breaches of obligations by our legal representatives of vicarious agents.
  6. f) Item 8. i) applies accordingly.

10. DATA PROTECTION

We may save the data concerning our customers and may use and apply this data in accordance with the statutory requirements for commercial purposes.

11. PLACE OF JURISDICTION

The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between ourself and our customers – including from documents, drafts and cheques – is the district or county court responsible for our headquarters location. We retain, however, – if we wish – the right to make claims against the customer at the courts responsible for his headquarters.

12. EFFECTIVENESS

If individual provisions of these conditions or the corresponding contracts are or become ineffective, the validity of the remaining provisions shall not be affected. The completely or partially ineffective regulation will be replaced by a regulation which comes closest to the economic results of the ineffective provision.

GETI WILBA GMBH & CO. KG
Version: January 2011