Terms & Conditions

General Terms and Conditions of Sale and Delivery

CHOCAL Packaging Solutions GmbH

Perlenweg 6, D-73525 Schwäbisch Gmünd, Germany

1. scope of application

These terms and conditions of sale and delivery shall apply to all business transactions

between us and persons who, at the time of conclusion of the contract, act in the exercise of their commercial or independent professional activity, as well as with legal persons under public law or a special fund under public law.

They shall apply in particular to all transactions made but not yet concluded as well as to all future transactions, even if no express reference is made to these Terms and Conditions of Sale.

These Terms and Conditions of Sale shall conclusively govern all business transactions between us and the purchaser conclusively. In particular, general terms and conditions of the purchaser, such as terms and conditions of purchase, shall not be

part of the contract, irrespective of whether they contain provisions which deviate from or supplement these terms and conditions of sale. Any agreements made earlier are hereby cancelled.

2. offers

Our offers are subject to change. Incoming orders shall only become binding for us

binding on us only when we confirm them in writing or execute them. Verbal and

telephonic agreements also require written confirmation.

3. order content

The subject matter of the order shall only include those services which are expressly

stated in the order confirmation. Additional services will be invoiced separately. This applies in particular to all costs arising from subsequent change requests of the customer.

4 Execution

4.1 Advice

Advice, information and suggestions concerning the use, processing and

possible applications of the products supplied by us shall only contain agreed

quality characteristics or a guarantee for the quality or durability of the item

or durability of the item only if this has been agreed in writing.

4.2 Catalog

The illustrations in the catalog are of natural size, unless otherwise noted.

No guarantee can be given for them. The illustrations in the catalog are

not binding in terms of color.

4.3 Samples

The provision of samples or the like does not imply any agreed procurement

characteristics in the sense of §434 BGB or guarantee in the sense of §443

BGB. They shall only serve as an approximate basis for delivery.

4.4 Models, printing and design documents

Models, printing and design documents and the like submitted by us to the purchaser

shall be checked by the purchaser with regard to all essential and required properties for the use of the product. The purchaser must approve the documents in writing as a sign of his consent, unless otherwise agreed.

The Purchaser shall be liable for any recognizable defects which the Purchaser has overlooked during the inspection or defects which the customer overlooked or did not object to during the inspection, unless we fraudulently concealed them. Technical advice and recommendations by us are based on reasonable examination, but are made outside the scope of contractual obligations.

Liability on our part is excluded in this respect.

4.5 Quantity tolerance

As a matter of principle, we shall be entitled to make overdeliveries and underdeliveries due to production, both with regard to the total final quantity and with regard to each individual partial delivery. The quantity tolerance shall be as follows for quantities for which more than 5,400m² of raw material (aluminum foil) is required, +/- 10% of the quantity ordered. For quantities for which less than 5,400m² of raw material is required, the quantity tolerance is +/- 20% of the order quantity.

4.6 Quality tolerance

The order shall be executed in customary quality, in accordance with the state of science and technology within the technically necessary material and process-related tolerances.

4.7 Approvals, documents, etc.

The Purchaser shall be responsible for obtaining all permits, documents or the like required in the Purchaser's country at the Purchaser's expense.

5 Delivery and Acceptance

5.1 Delivery periods

Information on the delivery period and delivery dates shall not be binding, unless they have been exceptionally bindingly promised. If, by way of exception, a binding delivery period or a binding delivery date has been agreed, compliance with the delivery period or delivery date by us shall require that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon it, such as, for example, providing the necessary official certificates or approvals.

If this is not the case, the delivery period shall be extended accordingly. This shall not apply insofar as we are responsible for the delay. Likewise, the delivery dates and

delivery periods shall be reasonably extended as long as the customer is in arrears with a payment due or fails to perform an act necessary for the fulfillment of the order.

The same shall apply in the event of change requests by the Purchaser.

5.2 Delay in delivery

Delivery hindrances for which we or our suppliers are not responsible (in particular force majeure, import and export embargoes, war, transport difficulties, strikes and lockouts, machine failures, tool failures, insolvency of a supplier, shortage of raw materials and energy, etc.) release us from our obligation to deliver for the duration of the hindrance and to the extent of its effect. Compliance with the delivery period and delivery date is also subject to correct and timely delivery to us. We shall inform you as soon as possible. The delivery period shall be deemed to have been complied with if the delivery item has left our factory by the end of the delivery period or if we have notified the customer that the goods are ready for dispatch. IInsofar as acceptance is to take place, the acceptance date shall be decisive - except in the case of justified refusal of acceptance - alternatively the notification of readiness for acceptance.

5.3 Default in acceptance, breach of duties to cooperate

If, contrary to the contractual agreements, the goods delivered by us are not accepted or if the customer violates other duties to cooperate, we shall be entitled to charge the resulting costs (e.g. own or third-party storage costs).

The risk of performance and price shall pass to the purchaser at the latest when the

the customer at the latest. When calculating time limits, in particular time limits for notification of defects and warranty periods, the time of the occurrence of the default in acceptance shall take the place of delivery. If impossibility occurs during the

delay in acceptance, the customer shall remain obliged to counter-performance.

5.4 Rights of the Purchaser

In the event of a delay in delivery, the Purchaser shall be entitled to the statutory rights. For claims for damages shall be subject to the limitations set forth in item 15 of these

General Terms and Conditions of Sale and Delivery.

6 Payments, advance payment, set-off, price adjustment, Deterioration of the Purchaser's Assets

6.1 Payments, advance payments

Our invoices shall be payable - unless expressly agreed otherwise:

Net within 8 days of the invoice date. If the payment terms are exceeded, we shall have the right to charge interest on arrears from that time the rate charged to us by the bank for its overdraft facilities, but at least overdrafts, but at least at the rate of 8 percentage points above the respective base interest rate of the European Central Bank. A payment shall only be deemed to have been made when we can dispose of the amount. Further deliveries may be suspended until full payment of previous obligations has been made. In this case there is no obligation, but entitlement to subsequent delivery.

6.2 Right of set-off and retention

The purchaser shall only be entitled to a right of set-off and a right of retention for

claims which are either undisputed or have been finally determined by a court of law.

6.3 Price adjustment

If, in the case of continuing obligations, there is a change in the cost of wages, materials, energy or value added tax, we shall be entitled to make a reasonable

adjustment of the price taking these factors into account.

In the case of other orders, we are entitled to adjust prices in the event of changes in wage, material and energy costs as well as value added tax if there are more than 4 months between the conclusion of the contract and the delivery date. If the delivery can only be made after the expiry of 4 months for reasons for which the customer is responsible, we shall have the same right of increase.

6.4 Deterioration of assets

If a significant deterioration in the financial circumstances of the customer occurs after conclusion of the order or if we only become aware of a previously occurring deterioration in the financial circumstances after conclusion of the contract, we are entitled to set the customer a reasonable deadline in which he must either pay concurrently against performance or provide security. In the event of refusal by the customer or unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract and demand compensation for damages.

7. retention of title

Our deliveries shall be made exclusively subject to retention of title. The goods shall remain our property until all claims to which we are entitled from our business relationship with the customer have been settled. The customer may neither pledge nor transfer by way of security goods still belonging to us. The customer must notify us immediately of any seizure or any other impairment of our rights by third parties. As long as the retention of title exists, the processing or treatment of the goods subject to retention of title shall be carried out for us. We shall be entitled to ownership or co-ownership of the new item created as a result. If the reserved goods are combined with other items, we shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the value of the other items at the time of combination. The new item created by processing or combination shall be deemed to be reserved goods within the meaning of these General Terms and Conditions of Sale and Delivery. The purchaser hereby assigns to us the claims to which he is entitled against his customers from the resale of the goods subject to retention of title, including all ancillary rights, and in the case of processing or combination in the amount of the value of the goods delivered by us. As soon as he is in default, the customer shall notify his debtors of the assignments and provide us with the necessary information and hand over documents. If the value of the securities given to us exceeds our claims by more than 20% in total, we shall release securities of our choice in the corresponding amount at the request of the customer. We are entitled to insure the delivery against theft, breakage, fire, water and other damage at the expense of the purchaser, unless the purchaser can prove that he has taken out insurance himself. The application for the opening of insolvency proceedings entitles us to withdraw from the contract and to demand the immediate return of the delivery item. If our claims become due or if the customer violates any other obligations incumbent upon him, we shall be entitled a) to revoke the authorization to sell or process the goods subject to retention of title and to collect the claims assigned to us, and/or b) to demand the return of the goods subject to retention of title without the customer being entitled to a right of retention against this claim for return and without us thereby withdrawing from the contract, and/or c) to inform the third-party debtors of the assignment. 

8. tools clichés and similar objects 

By payment of pro rata costs for tools, printing plates, printing and embossing rollers etc. manufactured or procured by us, the customer shall not acquire any right to the tools themselves. These shall remain our property in any case, irrespective of any design protection claims of the customer. If tools, printing plates, printing and embossing rollers have been manufactured exclusively for an article of the customer and no order for the corresponding article is placed for more than 3 years, we shall be entitled to utilize this article for other purposes.

9. industrial property rights

9.1 Our industrial property rights

We reserve the property rights and copyrights to illustrations, drawings, models, drafts and other documents. They may not be made accessible to third parties. This applies in particular to such written documents which are designated as "confidential". The customer must obtain our express written consent before passing them on to third parties.

9.2 Industrial property rights of the purchaser

In the event of a breach of contract by the customer, his industrial property rights shall not prevent us from exploiting the goods.

9.3 Industrial property rights of third parties

The customer shall be responsible for the examination of industrial property rights of all kinds in respect of artwork, models, drafts, finished samples or the like, unless he has expressly given us an order to that effect. In the case of deliveries made in accordance with the customer's specifications, the customer shall indemnify us against all third-party industrial property claims.

10 Transfer of risk

Unless otherwise agreed, the risk of performance and price shall pass to the Purchaser when the delivery leaves our works. The use of commercial clauses does not imply any deviating regulation of the transfer of risk, unless it is an express reference to Incoterms "latest version".

11 Warranty for defects

11.1 Scope of warranty for defects

We do not warrant that the goods are suitable for the purposes subjectively intended by the customer, unless a specific usability is expressly guaranteed in writing. We shall only be liable for light fastness, variability and deviations of the colors as well as for the quality of the varnish to the extent that defects of the materials were recognizable prior to their use upon proper inspection by us. We shall only be liable for the placement of the print on our CHOCAL aluminum foils to the extent that this lies outside the technically feasible manufacturing tolerance. In the case of CHOCAL aluminum foils manufactured by us, the machine readability of printed bar codes or the like as well as the readability of texts or the like cannot generally be guaranteed and is not covered by the warranty. In the case of machines, equipment and tools and chocolate molds, no warranty is given in particular in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, or other faults.

improper maintenance, unsuitable operating materials, defective construction work, unsuitable foundation soil, chemical, electrochemical or electrical influences - insofar as we are not responsible for these. If the purchaser or a third party carries out improper repairs, we shall not be liable for the resulting consequences. The same shall apply to any changes made to the delivery item without our prior consent.

11.2 Defects in partial quantities

Defects in a part of the delivery cannot lead to a complaint about the entire delivery, provided that a separation of the defect-free and defective parts is possible by reasonable means.

11.3 Duty to examine and give notice of defects

The delivered goods shall be inspected without delay. Defects - including the absence of warranted characteristics as well as quality and warranty features - shall be notified in writing immediately upon discovery. Obvious defects can only be notified in writing within a period of 7 days after receipt of the goods. The existence of hidden defects must be notified in writing within 7 days of their discovery and, irrespective of the discovery, within one year of delivery. The date of receipt of the complaint by us shall be decisive for all complaints. If the purchaser fails to give notice of defects, the goods shall be deemed to have been approved. The obligations to inspect and to give notice of defects shall apply accordingly if a quantity of goods other than that stipulated has been delivered, unless the goods delivered obviously deviate from the order to such an extent that the Purchaser's approval had to be regarded as excluded.

11.4 Our rights

The Purchaser shall, after consultation with us, give us the necessary time and opportunity to carry out all repairs and replacement deliveries which we deem necessary; otherwise we shall be released from our liability for material defects for the consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case we must be notified immediately, shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand compensation from us for the necessary expenditure.

11.5 Rights of the Purchaser

In the event of defects, the customer may demand subsequent performance from us. If we do not comply with this request for subsequent performance within a reasonable period of time set to us, the Purchaser shall be entitled either to a reduction of the purchase price or - if the goods are objectively worthless to the Purchaser - to rescind the contract. Claims for damages on the part of the purchaser shall be governed by item 15 of these

General Terms and Conditions of Sale and Delivery.

11.6 Limitation

Claims arising from liability for material defects shall become statute-barred within 12 months. This shall not apply if longer periods are prescribed by law, in particular for defects in a building and for goods which have been used for a building in accordance with their customary use and have caused the defectiveness thereof.

12 Packaging

The goods shall be packaged in a manner customary in the trade, including the respective

transport carrier. Unless otherwise agreed, packaging shall be charged at cost price.

13. storage, transport

The goods delivered by us shall be stored and transported properly, dry, dust-free and under hygienic conditions in the original packaging as far as necessary.

14. partial invalidity

Should parts of these General Terms and Conditions of Sale and Delivery be or become invalid, the remaining provisions shall nevertheless remain valid.

15 Other Claims, Liability

15.1

Unless otherwise provided for in these General Terms and Conditions of Sale and Delivery, any other and further claims of the Purchaser against us shall be excluded. This shall apply in particular to claims for damages for breach of obligations arising from the contractual obligation and from tort. Therefore, we shall not be liable for damages that have not occurred to the delivered goods themselves. In particular, we shall not be liable for loss of profit or other pecuniary losses of the customer.

15.2

The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or our executive employees, or culpable breach of material contractual obligations. In the event of a culpable breach of material contractual obligations, we shall be liable - except in cases of

intent or gross negligence of the legal representatives or executives - only for the reasonably foreseeable damage typical for the contract.

15.3

Furthermore, the limitation of liability shall not apply in cases where liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It shall also not apply in the event of injury to life, limb or health and in the absence of warranted characteristics, if and to the extent that the warranty has the specific purpose of protecting the customer against

the Purchaser against damage which has not occurred to the delivered goods themselves.

15.4

Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and our vicarious agents.

15.5.

The statutory provisions on the burden of proof shall remain unaffected.

16 Applicable law, place of performance and jurisdiction

For all legal disputes, also in the context of a bill of exchange and check process

check process, the place of jurisdiction shall be Schwäbisch Gmünd. However, we shall also be entitled to take legal action at the place of business of the customer. The contractual relations shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention of 11.04.1980 on Contracts for the

Contracts for the International Sale of Goods (CISG-"Vienna Sales Convention") is excluded.

- Status 02-2014 -