GTC

Effective date: July 2003

1. Scope of Application

Any and all current and future deliveries and services shall be provided to our contracting partners (hereinafter referred to as "Customer") solely on the basis of these General Terms and Conditions, unless expressly agreed otherwise in any given case generally or for specific matters. The INCOTERMS of the International Chamber of Commerce in Paris (as amended) shall also apply in cross-border transactions. We will not generally recognize any general terms and conditions of the Customer, even if we do not expressly reject such terms and conditions. Any derogations from, modifications and/or supplements to agreements between us and the Customer, including these terms and conditions, must be made in writing. Any waiver of this writing requirement must be in writing.
Our General Terms and Conditions and any contracts concluded on the basis of these General Terms and Conditions are governed by German law in the same manner as between domestic persons.
If any of the following terms and conditions are not binding upon contracting partners who do not qualify as entrepreneurs, governmental legal entities or special governmental funds, then such provisions will remain valid vis-à-vis any customer who qualifies as a merchant within the meaning of § 310 (1) of the German Civil Code ("BGB").

2. Offer and Contract Formation

Our offers are non-binding. Technical data and any illustrations or pictures of the item for delivery, which appear in any offers, brochures or other information documents, do not constitute a guaranty or a warranty as to qualities. All contracts concerning our goods and services are subject to our confirmation, either in writing or sent via fax. Any unilateral, legally binding statements concerning the contractual relationship, in particular notices of termination, must be made in writing. The written declaration may also be transmitted by fax.
We reserve the right to make any modification (including any improvements to the ordered goods), if such modification appears advisable on the basis of regulatory requirements and/or consumer protection laws or for purposes of streamlining the manufacturing process, provided such modifications are not unreasonable for the Customer.
We reserve all rights relating to offers and cost estimates provided by us as well as to any samples, tests, images, descriptions, models, calculations and other documentation furnished to the Customer but originating from us or from third parties.
If we consent to the Customer's repudiation of a completed transaction, then said Customer shall be obligated to reimburse us for any expenses incurred by us in order to create his offer. If we accept any modifications to the order, the Customer shall bear the additional costs arising as a result.
Our printing costs are based on the number of colours and print runs. The Customer shall be liable for any additional costs generated by any additional work, including drafts, proof-changes and printing forms (print blocks, engraving-cylinders, etc.). The printing prices shall apply to a print run ordered at once and completed in a single work cycle.
The manuscripts submitted by us or any copies thereof, which the Customer confirms as print ready, shall be definitive as regards the text and print status of the print production run. In all printing jobs, any minor colour deviations from the originally submitted manuscripts will be permissible. A colour deviation will be deemed minor if the contractual purpose, specifically the usage in customer dealings, is not impaired.
With respect to any printing materials furnished to us such as drafts, print blocks, etc., we shall be liable only for the cost incurred by us had we procured standard commercially available designs. A retention period of 3 (three) years applies to all printing materials.
We shall retain title to all printing materials even if the printing preparation costs are paid on an instalment basis.
Paragraph 1, clauses 1 through 3 and clause 2 of § 312 e (1) of the German Civil Code (“BGB”) shall not apply with respect to transactions executed in connection with electronic commerce, unless the Customer qualifies as a consumer within the meaning of the BGB.

3. Prices, Terms of Payment

Our prices shall apply only to the agreed scope of service and delivery. Additional and special services shall be invoiced separately. Prices will be calculated as follows: by metre or units for sausage casings and by m² or unit for sponge cloths.
With respect to any contracts with an agreed term of more than 4 (four) months, we reserve the right to increase the prices in accordance with any cost increases triggered as a result of collective bargaining contracts or an increase in the cost of materials.
Our invoices shall be settled by remitting payment to our business accounts by the payment date specifically agreed. Payment shall always be made in the currency indicated on the invoice. Payments will be deemed made on the date on which the funds are at our disposal. Payments shall be credited against the oldest debt respectively. Any advance payments or payments on account will not accrue interest. Cheques and notes will be accepted subject to clearance and to the rights customarily reserved in commercial practice.
The payments shall be deemed in default at the latest 30 (thirty) days after they fall due. Payment default may be triggered earlier by issuing a default notice. In the event of a payment default, the Customer shall be obligated to pay interest commencing on the date of default at a legally permitted level exceeding the base interest rate or the interest rate that is customary in the Customer’s country. If we can prove a higher interest rate is required to offset our loss, then we shall be entitled to enforce such interest rate. We will be under no obligation to carry out any additional deliveries to the Customer during the period in which the Customer is in default on his payments.
The Customer may only offset his own claims against our payment claims or invoke a right to withhold payment with receivables if such claims are undisputed or if no legal recourse against them is possible.,then However, the Customer shall always be entitled to withhold his performance on the basis of counter-claims arising from the same contractual relationship.
If the Customer's financial position has deteriorated, or it has discontinued its payments, or it has become over-indebted, or insolvency proceedings have been opened or a petition for their commencement has been made with respect to its assets, or the Customer’s cheques or notes are not honoured, then all outstanding or suspended claims shall fall due for immediate payment. In such cases, we shall be entitled to demand advance payments or the provision of security, or, where the Customer, following a demand, definitively refuses to perform the contract or provide security, to rescind the contract or demand compensatory damages on grounds of non-performance.

4. Deliveries

Delivery schedules and deadlines shall be binding only if we have expressly agreed that they are binding. An expressly agreed delivery schedule shall be deemed to have been met (a) if the item for delivery is delivered for shipment during such period, or (b) in the event the shipment is delayed for reasons beyond Kalle's control, provided we issue notice of tender of delivery during the agreed period.
An agreed delivery schedule may be reasonably extended, if the failure to meet such schedule is attributable to an event occurring after the conclusion of the contract such as a force majeure, mobilisation, war, uprising, strike, lock-out, government expropriation, embargo, shortage of raw materials or any other unforeseeable hindrance that cannot be avoided using reasonable means.
The same shall also apply if our suppliers are affected by such circumstances. If the agreed performance is rendered impossible or commercially impractical, either in whole or in part, for a foreseeable period of more than six months as a result of a force majeure, then we will shall be entitled to rescind the contract. The same shall apply insofar as a supplier's delivery is delayed as a result of force majeure. If the shipment or delivery delay is caused by the Customer, then we shall be entitled to invoice the Customer for any additional costs arising as a result.
We reserve the right to make partial deliveries to a reasonable extent.

5. Shipment

We shall deliver the ordered goods in packaging appropriate for the type of shipment and the product itself. The Customer shall bear the additional costs of any extra packaging or transport materials requested.
Packaging provided to the Customer on a loan basis must be returned to us in accordance with the relevant agreements reached. If such return shipment is not made in a timely manner, then we may seek reimbursement of the replacement costs from the Customer after having issued a second default notice including a deadline. If the packaging is not returned in an orderly condition, then the Customer shall be liable for the costs related to disposal and replacement arising as a result.
The Customer shall bear the risk of loss on all deliveries, including return shipments (excluding return shipments due to defects in the goods), even if the parties agreed to a freight-paid, FAO/FCA or CIF delivery. Risk of loss shall pass to the Customer at the latest upon shipment of the goods within the meaning of § 447 BGB. The Customer shall bear the costs for any freight increases after the contract has been concluded and for any extra costs triggered by a hindrance or delay in the transport due to circumstances beyond our control.
We will only insure against damages caused by theft, breakage, transportation, fire, and water or against other insurable risks at the Customer's explicit request and at the Customer’s expense.

6. Complaints, Warranties

Promptly following delivery, the Customer must inspect the goods to determine whether their quantity and qualities conform to the terms of the contract and whether they are suitable for their intended purpose. Written notice of any identifiable defects or quantitative discrepancies must be provided to us promptly but no later than 14 days of delivery to the Customer. Written notice of any latent defects or discrepancies must be provided to us promptly following their discovery, but no later than 1 (one) year after delivery to the Customer. The notice shall include the order date, the invoice number, the bill of delivery number, and a brief description of the problem. Failure to submit such notice (complaint) in a timely manner will result in the loss of the right to enforce claims against us based on defects or discrepancies, unless we fraudulently concealed the defect or provided a guaranty.
Our liability for defects is limited to the supplementary performance, i.e., to the Customer’s right to demand, at our costs and at our discretion, either to eliminate the defect or deliver a non-defective good; Section 439 (3) BGB is not affected by this. If the supplementary performance fails after a reasonable period of time, for whatever reason, then the Customer may – at his discretion – demand a reduction in the purchase price or rescind the contract. In this case, the rights to enforce compensatory damage claims or to demand indemnity for expenditures made in vain will remain unaffected, subject to the terms of item seven (7). The Customer will be entitled to enforce these rights immediately (i.e., without having to wait for a reasonable period of time), if we refuse supplementary performance or if such performance would not be fair and reasonable for the Customer for other reasons. The aforementioned provisions do not apply to Customer claims based on any guaranty we provide. Any warranty claims against us shall fall under the statute of limitations in 1 (one) year from the date on which the goods are delivered, unless we fraudulently concealed the defect, in which case, the regular limitation period of 3 (three) years shall apply. Only the Customer is entitled to enforce warranty claims against us. These claims may not be assigned.

7. Liability

We shall be liable for any damage resulting from injury to life, limb or health, which may be attributable to a wilful or negligent breach of an obligation by us or one of our statutory representatives or vicarious agents.
We shall be liable for any other damage only if it is attributable to a wilful or grossly negligent breach of duty either by us or our statutory representative or our agents. Our liability will be disclaimed if the breach of duty is merely negligent, unless the breach relates to material contractual duties (cardinal duties). If we negligently breached material contractual duties, then the liability shall be limited to the foreseeable damages arising from a contract of this type.

8. Retention of Title

We retain title to all items delivered by us until the Customer has discharged all claims arising from the business relations with us.
Our retention of title extends to any new products that are created when the goods subject to title retention (“Secured Goods”) [Vorbehaltsware] are processed. We conduct the processing in our capacity as a manufacturer. If the Secured Goods are processed, linked to or combined with other goods not belonging to us, we shall acquire pro-rata co-ownership interest at a ratio of the invoiced value of our Secured Goods to the invoice value of the other materials.
As long as the Customer is prepared and in a position to duly discharge the obligations owed to us, he may dispose of the goods in which we hold an ownership or co-ownership interest during the ordinary course of business. The following specific rules shall apply:

a) If the Customer does not require immediate payment of the purchase price from its own customers, then it must retain ownership of the modified goods. Unless it has retained such title, the Customer shall not be authorized to dispose of the Secured Goods.

b) The Customer hereby assigns to us all claims arising from the sale of the Secured Goods, including all cheques and notes, for purposes of securing our claims arising from the business relationship. In the event that the goods in which we hold a co-ownership interest are sold, the assignment shall be limited to that portion of the claim that represents our co-ownership interest. If the Secured Good is processed as part of a contract for work, a claim for remuneration of the work product equivalent to the pro-rata amount of such consideration for the processed Secured Goods shall be assigned to us. The Customer is entitled to resell or otherwise use the Secured Goods only if it is certain that the claims arising there from will pass to us.

c) If the assigned claim is incorporated into a current account, then the Customer hereby agrees to assign to us a portion of the balance (including the corresponding portion of the closing balance) from the current account in an amount equal to such claim. If interim balances are netted and the parties agree to carry forward the resulting balance, then the claim from the interim balance to which we are entitled based on the foregoing provision shall be deemed assigned to us.

d) The Customer is authorized to collect the claims assigned to us, until we have revoked such authority. As long as we retain ownership, the Customer shall treat and hold the Secured Goods in a safe and careful manner, insofar as he exercises control over these. During the period in which title is retained, the Customer may neither pledge nor create a security interest in the Secured Goods. Access to the Secured Goods by third parties – for example, as part of an attachment or governmental seizure – as well as any damage to or destruction of the Secured Goods must be promptly notified to us in writing or via fax. The Customer shall be responsible for all costs required to stop the action taken against the Secured Goods or to replace the Secured Goods, provided they cannot be confiscated by third parties.

If the Customer breaches his duty to treat the Secured Goods with care and any other duties of care and if there is a default in the payment of the secured claims, then we shall be entitled to repossess the Secured Goods. The repossession will constitute a rescission of the contract only if we indicate this in writing. Following repossession, we may sell the Secured Goods, whereby the proceeds from the sale shall be offset against the Customer's debts (less any reasonable costs of realisation). The same rule shall apply in all cases involving the Customer's breach of contract.
If the realisable value of the collateral exceeds the secured claims by more than 10%, then upon the Customer's request, we shall release the excess collateral in accordance with his instructions.
If the retention of title is not valid under the laws of the Customer's country, either in whole or in part, then our aforementioned rights will be limited in scope to that permitted by law.

9. Copyright, Trademarks

Unless otherwise expressly agreed, we retain the reproduction right and copyright in respect of all printing materials, drafts and outlines prepared by us. No draft may be reproduced or copied without our prior written consent. Trademarks may be used only with the special written consent of the trademark holder and in connection with products processed or manufactured by the Customer.
If, in discharging the order pursuant to the directives and requests of the Customer, third party intellectual property rights are infringed, then the Customer shall be liable for all infringement claims arising as a result.

10. Confidentiality

The contracting parties agree to treat as confidential for an indefinite period any and all information to which each becomes privy in connection with the contract and which is marked as confidential or which, on the basis of its circumstances, is identifiable as a business or trade secret, and agree not to record or otherwise exploit such information – to the extent it is not required to meet the contractual purpose.

11. General Provisions

To the extent the contract is executed with contracting partners that qualify as entrepreneurs, governmental legal entities or special governmental funds, the judicial forum for all disputes arising from this contractual relationship shall be Wiesbaden. This shall also apply to any lawsuits brought in expedited legal proceedings involving instruments and commercial paper.
Should any provision of these General Terms and Conditions of Sale or any portion thereof be or become invalid, then the validity of the remaining provisions and the validity of the contract executed with the Customer shall remain unaffected.