Terms of trade

Conditions of sale and delivery

§ 1 Conclusion of contract

1. With the exception of deviating contractual arrangements made in stand-alone cases, delivery contracts are only concluded on the basis of these conditions. These conditions apply to companies, legal entities under public law and public law special trusts.
   The validity of the terms of trade is simultaneously agreed for all future contracts.
2. Deviating or supplementary purchasing conditions issued by the customer do not apply unless they have been recognised by the contractor in writing.
3. All offers are free of obligation and first become valid after written confirmation. The scope of our delivery obligations, in particular with regard to statements of quantity and quality, is governed solely by our written offer and/or our written confirmation of order. Unless stated otherwise, prices do not include value-added tax.
4. Guarantees are only effectively issued when they are unambiguously designated as such in our confirmation of order.
5. It is the responsibility of the customer alone to review the suitability of our products for its purposes (including reprocessing by the customer and the purposes of its buyer). Any liability for the suitability of our products for the customer's purposes requires that we have confirmed their suitability in writing or have expressly guaranteed this.

§ 2 Execution of delivery

1. The customer bears the transport risk.
2. The contractor is entitled to make multiple deliveries, providing this is reasonable for the customer in consideration of the contractor's interests. With the exception of unusual circumstances in stand-alone cases to be demonstrated by the customer, reasonable is regarded as being multiple deliveries for an order of
   o up to 500 pieces - 20%
   o up to 3000 pieces - 15%
   o over 3000 pieces - maximum 10%.
3. The quantity invoiced is that actually delivered.
4. Part deliveries in a scope reasonable for the customer are admissible in consideration of the contractor's interests.
5. Printing blocks, tools and other auxiliary aids made by the contractor or on its behalf remain the property of the contractor, even if the manufacturing costs are invoiced in whole or in part and have been paid by the customer. Due invoices for such objects are payable without deduction. The contractor is not obliged to hand over such objects to the customer.
6. The customer bears the responsibility for observing protected rights and copyrights on the ordered items. Should the contractor be aware of third party protected rights and copyrights, it shall point these out to the customer.

§ 3 Palettes

1. 1. The contractor or a third party it commissions shall record the palettes and cover boards it owns in a palette account for the customer. This keeps track of the stock of palettes and changes to this. On request, the customer shall receive an extract from the palette account for the purpose of reconciling balances.
2. The records in the account are maintained on the basis of dispatch notes. The customer shall sign each time to acknowledge the palettes it has received.
3. With each delivery of paletted goods, the customer shall successively return to the contractor the same number of equivalent palettes that it receives.
4. Palettes not returned or handed over damaged will be invoiced.

§ 4 Customer in default of acceptance

1. If the customer refuses to accept the goods in part or in full at the agreed delivery date, the contractor can then demand either fulfilment of the contract, or damages due to non-fulfilment after expiry of a reasonable period of grace set by it.

§ 5 Delivery date

1. Delivery dates are solely approximations, unless these are expressly designated in writing as binding.
2. The delivery period starts on the date of order acceptance. If a confirmed order is changed, the delivery period starts upon confirmation of the change.
3. If a delivery is delayed at the request of the customer, the contractor can invoice the storage costs it incurs – even if the delivery is stored in its own works – starting one month after notification of readiness to dispatch, although at least 0.5% of the amount invoiced for the goods for each month. Further-going claims are reserved; the customer may demonstrate that the contractor incurred no extra expenses or considerably lower costs as a result of the delay.
4. In the cases named under 3., the contractor is furthermore entitled to dispose of the goods elsewhere after a reasonable period of grace has expired and to supply the customer at a correspondingly extended delivery period.
5. If the contractor is in default of delivery, the customer can set a reasonable period of grace of at least 2 weeks and withdraw from the contract by means of a declaration after this deadline has expired fruitlessly.

§ 6 Acts of God

1. If the execution of the order is delayed by an Act of God, the agreed delivery date is then extended by the duration of the hindrance. The contractor shall notify the customer that an Act of God has occurred without delay. Otherwise the contract remains unaltered.
2. If the hindrance lasts longer than 6 weeks, both parties then have the right to withdraw from the contract. Prior to this, the right of withdrawal solely exists if the contractor has informed the customer in writing that the contract cannot or can no longer be fulfilled.
   The aforesaid restriction does not apply to fixed transactions.

§ 7 Customer claims due to defects, liability

1. Complaints, false deliveries, quantity errors or recognisable defects in the delivered goods must be notified without delay in writing, although at the latest within 8 working days after receipt of the goods. Hidden defects must be notified in writing at the latest within 8 working days after their discovery.
   The right of complaint for hidden defects expires 2 months after receipt of the goods.
   Samples of the goods complained of shall be enclosed with the notice of complaint.
   Defects to a part of delivery do not justify a complaint on the delivery as a whole, unless it would be unreasonable for the customer to accept the faultless part of the delivery.
2. Should the delivered goods be defective, the contractor can, at its discretion for subsequent fulfilment, either rectify the defects or deliver faultless replacements. Only if this fails repeatedly or the situation becomes unreasonable and the defects are not inconsiderable may the customer withdraw from the contract or demand a reduction in price as per legal regulations; § 478 BGB remains unaffected. The claims to damages under § 7 item 6 of these conditions accrue to the customer.
3. The contractor is not liable for properties of packaging with regard to its suitability for a certain purpose unless a guarantee has been given to this effect in writing.
   It is the responsibility of the customer alone to review the suitability of the contractor's products for its purposes (including reprocessing by the customer or the purposes of its buyer). Any liability for the suitability of the products for the customer's purposes requires that the contractor has confirmed their suitability in writing or has expressly guaranteed this.
4. The contractor accepts no liability for normal tolerance deviations in the adhering, smoothness and purity of the papers, the adhesive, stapling, colours and printing. The admissible tolerances are +- 1%, at least +- 3 millimetres.
   In the case of automatically produced parts, a 5% reject rate without reduction shall be recognised.
5. For the rest, the test catalogue for corrugated card boxes issued by VERBAND DER WELLPAPPEN-INDUSTRIE E.V., Hilpertstrasse 22, 64295 Darmstadt, and available from the contractor, as well as the DIN standard for corrugated card packaging, each in the latest version, are used to assess normal or technically unavoidable deviations.
6.  The contractor is liable without restriction, in accordance with the provisions of the Product Liability Act, in cases in which an express warranty is given, a procurement risk exists or if obligations are infringed with malice aforethought or by gross negligence. The contractor is likewise liable without restriction in the case of fatalities, physical injuries or harm to health caused by malice aforethought or gross negligence. The contractor is only liable for material and asset damages caused by slight negligence in case major contractual duties (cardinal obligations) are infringed, Although limited to the damages typical to the contract that were foreseeable upon conclusion of contract.
   If the customer pursues damages instead of performance in case the contractor is in default of delivery due to slight negligence after expiry of a reasonable period of grace, such damages are restricted to the additional costs assumed for a coverage purchase – although to a maximum of the order value.
   Liability for damages above and beyond that foreseen in the foregoing paragraph of this § 7 item 6. is excluded – without regard to the legal nature of the claim lodged.
   The aforesaid restrictions of liability also apply in reason and amount in favour of the contractor's legal representatives, employees and other vicarious agents.
7. Claims due to material and/or legal defects expire by limitation of time after 12 months, calculated from the transfer of risk.
   Claims to damages, insofar as these are not associated with a defect, expire by limitation of time after one year from the end of the year in which the claim arose and the customer became aware, or should have become aware without gross negligence, of the circumstances justifying the claim.
   The statutory time limitations apply in case of malicious infringement of obligations, malicious concealment of defects, claims arising from illicit acts, the lack of guaranteed characteristics, the acceptance of procurement risks and injuries to persons. §§ 479 and 634 a Para. 1 No. 2 BGB remain unaffected.

§ 8 Issue of invoice, maturity, payment

1. Unless agreed otherwise in writing, the contractor's prices are free to house exclusive of value-added tax at the prevailing rate.
   If the goods are to be delivered more than 3 months after the conclusion of contract, the parties shall agree a reasonable price correction if the contractor's basis of calculation has demonstrably changed in the meantime, particularly if the price of raw materials increases.
2.  Unless agreed otherwise, the invoice sum is payable within 14 days from the date of invoice at 2% discount or within 30 days net.
   The customer's payments are always used to redeem the oldest due debt.
   Retention of cash and/or del credere commission is only admissible after prior conclusion of a written cash and/or del credere agreement between the contractor and the customer.
   In case of payments through third parties, in particular under settlement and/or del credere agreements, the purchase price debt is not regarded as settled until the payment has been received by the contractor.
   If one of the due debts has not been settled, even after a payment reminder and expiry of a further period of grace of 2 weeks, all claims from the business relationship with the customer then become due immediately. The contractor is then entitled to make further deliveries under advance payment or adequate provision of security.
3. Payments shall be made by cash, cheque, bank or giro remittance. Insofar as bills of exchange have been agreed as the means of payment, these must be able to be processed by a bank. All costs and expenses incurred in this context shall be borne by the customer. No discount may be deducted from payments by bill of exchange. Bills of exchange are only accepted to facilitate payment.
   The pursuit of offsetting and payment retention rights is only admissible in the case of counter claims recognised by the contractor or established in a court of law.

§ 9 Default of payment

1. In case of default of payment, interest shall be charged at a rate of 8 percentage points per annum above the prevailing basis interest rate (§ 247 BGB). Demonstration of further-going default damages is reserved.
2. If the customer is in default of payment, the contractor is not obliged to make any further deliveries under any contract until the due invoice sums, including default interest, have been settled.
3. If the customer is in default with agreed payment dates or if circumstances arise which indicate a major deterioration in the customer's financial situation or credit-worthiness as judged by normal banking standards and after fruitless expiry of a reasonable period of grace, the contractor is entitled to demand immediate payment for deliveries made and, at its discretion, to require advance payment or cash on delivery for future supplies. Alternatively, the contractor can demand the provision of normal bank securities.
4. The contractor is entitled, at its discretion, to withdraw from the delivery contracts concluded with the customer or to demand damages instead of performance, if the customer has not made the payment within 10 days from receipt of a justified reminder.
   5. All the contractor's claims become due immediately if the customer declares itself to be unable to pay by applying for insolvency proceedings or by some other means.

§ 10 Reservation of title

1. The goods delivered remain the contractor's property until all claims arising from the business relationship have been satisfied.
2. The reservation of title does not exclude the customer's right to use, reprocess or sell the delivered goods within the framework of its regular business transactions. However, the customer may not collaterally assign or pledge the goods as long as the reservation of title exists.
3. The contractor's ownership does not expire if the delivered goods are used or reprocessed as packing materials. The contractor becomes the owner or co-owner of the new object in the ratio of the invoiced value of its reserved goods to that of the packaged goods or to the manufactured packaging.
4. If the delivered goods or the packing materials made from these are resold, the customer even now assigns its claim against the buyer for the purchase price to the contractor until complete payment has been made for its claims to the invoiced value of the delivered, reserved goods. The contractor hereby accepts the assignment.
   5. If the value of the foregoing security exceeds the value of the claims to be secured by more than 20%, then at the customer's request, the contractor shall release fully paid deliveries at its discretion. The customer is obliged to contradict any third party interference with the secured goods (reserved goods and claims) with reference to the contractor's rights and to inform the contractor of this without delay. The customer is furthermore obliged to insure the reserved goods in the normal scope.

§ 11 Place of fulfilment and jurisdiction, choice of law

1. The place of fulfilment is Remscheid/Bergisch-Gladbach/Breitscheid/Moers.
2. The place of jurisdiction for all obligations or legal disputes arising from the delivery contract – including disputes involving cheques and bills of exchange - is Krefeld. This only applies insofar as the customer is a merchant, a legal entity under public law or a public law special trust, or is based outside the Federal Republic of Germany.
   The contractor is also entitled to take action another court responsible under law.
3. The legal relationships between the customer and ourselves from or in connection with the business relationship are subject to German law as applicable to persons based in Germany, although to the exclusion of the UN treaty on the international sale of goods.

§ 12 Invalidity provisions

1. Should individual provisions in these conditions be or become unworkable for legal reasons, this shall not affect the validity of the remaining provisions.
2. Ineffective provisions shall be replaced in mutual agreement by effective provisions which come closest to the financial intent of the ineffective provisions.

AGBW:12/2003

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Wellkistenfabrik
Fritz Peters GmbH & Co. KG
Industriestrasse 5
D-47447 Moers
Tel. 02841/601-0
Fax 02841/601-234
info@peters-packaging.de

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