General Terms and Conditions

of VPZ Verpackungszentrum GmbH

I. SCOPE OF APPLICATION

1. These General Terms and Conditions (“GTC“) apply to all offers and agreements made by VPZ Verpackungszentrum GmbH (companies register number 438910g), Anton-Mell-Weg 14, 8053 Graz-Neuhart (hereinafter referred to as the “Seller”) with any other party qualifying as an entrepreneur within the meaning of section 1 of the Business Code (Unternehmensgesetzbuch, UGB), German Imperial Law Gazette no. 1897/ 219 as amended from time to time, (hereinafter referred to as the “Buyer”) when offering or supplying goods and/or services. These GTC are not applicable to legal transactions with consumers within the meaning of section 1 (1) item 2 of the Consumer Protection Act (KSchG, Konsumentenschutzgesetz), Federal Law Gazette no. 140/1979 as amended from time to time.
2. These GTC are an integral part of the agreement concluded between the Buyer and the Seller. In the event of discrepancies or conflicting provisions, individual agreements concluded in writing take precedence over these GTC.
3. Any deviations from these GTC or from specific contract terms as well as alterations of drawings and similar documents are binding on the Seller only if they have been accepted by the Seller in writing.
4. These GTC are legally binding even if individual provisions thereof are or become ineffective for whatever reasons.

II. OFFER AND ACCEPTANCE

1. The Seller’s management may refuse incoming orders without the need to give any reasons. The same applies to orders placed by packaging advisors.
2. All offers and order confirmations of the Seller must include details as to size and dimensions (in centimetres or millimetres), the exact name of the raw material (quality and type) and its weight (e.g. paper in gr/m2).
3. Unless deliveries are made or invoices are issued immediately, the Seller confirms acceptance of the order in writing by sending a letter, fax or e-mail.

III. PRICES

Unless a fixed price is expressly agreed upon, the Seller has the right to increase the originally agreed prices in the event of an increase in taxes and fees, labour and transport costs, prices of raw materials and consumables or in the event of changes in foreign exchange rates.

IV
. INDUSTRIAL PROPERTY RIGHTS

1. The printing material, such as drafts, drawings, clichés, films and printing plates, provided by the Seller remains the Seller’s property under civil law and intellectual property, even if the Buyer has paid part of the costs of such printing material. Rollers and printing cylinders also remain the Seller’s property. The Seller is under no obligation to keep any clichés or printing templates that have become unusable due to standard wear and tear while being used as contractually agreed.
2. The Buyer is solely responsible for verifying that any materials the Buyer provides may be reproduced and do not infringe any copyrights or violate any other statutory restrictions. The Buyer indemnifies and holds the Seller harmless with regard to all liabilities, costs and expenses as well as with regard to all claims of third parties of whatever nature. The Seller is entitled, but not obligated, to examine the materials provided by the Buyer. If the Seller deems any materials provided by the Buyer to be legally questionable, in particular because such materials are suspected of infringing copyrights, rights of use or personality rights or of being illegal or contra bonos mores, the Seller reserves the right to refrain from including such contents and to complete the work as agreed in all other respects. However, the Seller also has the right to withdraw from the agreement with immediate effect at its own discretion. In such a case, the Seller is entitled to claim pro-rata compensation for any work performed up to this point.
3. Unless otherwise agreed, the Seller is entitled to affix its company logo or an identification number to the goods it delivers.
4. If any copyrights or rights of use and/or other industrial property rights of the Seller or which the Seller is entitled to arise in the course of providing the services, such rights are granted to the Buyer by selling the object of delivery on a non-exclusive basis and only to the extent that is expressly covered by the respective purpose of the agreement. Such restriction of the rights granted also applies if the Buyer pays part of the costs for the development. In particular, the Seller is therefore entitled to exploit such copyrights and/or rights of use and/or other industrial property rights also when providing services to third parties.
5. The agreed fee or a reasonable fee for samples, sketches, drafts or similar results of services commissioned by the Buyer must be paid even if the order for which such samples, sketches, drafts and similar results of services were produced eventually is not placed. Ownership and any exploitation rights are transferred to the Buyer only once the fee is paid.

V. DELIVERY

1. Delivery is made for the Buyer’s account and at the Buyer’s risk, even if the Seller bears all or part of the transport costs.
2. The agreed delivery period starts on the day on which the Seller receives the Buyer’s final approval for printing and production.
3. Delivery is deemed to be made in time if the Seller sends the goods on the last day of the agreed delivery period.
4. If the order is changed after having been placed, the Seller is not bound by the delivery period originally promised or confirmed.
5. In events of force majeure to be attributed to, for instance, natural disasters, acts of government, strikes but also lockouts, business disruptions, other types of business interruptions, traffic problems, material shortages, the Seller may, at its discretion, either extend the agreed delivery period by a reasonable period or withdraw from the contract.
6. If the goods are not delivered within the agreed period, the Buyer must grant the Seller, by registered letter, a period of 14 days to deliver the goods; only once this grace period has lapsed, the order is deemed cancelled.
7. If the goods are delivered within less than 14 days after the end of the delivery period, no claims of any nature whatsoever may be derived from that.

VI. PACKAGING

1. The Seller is liable to ensure that packaging is in line with what is customary in the industry.
2. If the goods are charged by weight, the price is calculated based on the gross weight, i.e. including packaging and wrapping paper and the goods.
3. Any special packaging that is not customary in the industry is invoiced separately.

VII. TOLERANCES

Variations in weight

The Buyer must tolerate the same variations of grammage as the Seller must tolerate under the terms and conditions of delivery of the producers of any materials used.
Unless otherwise provided for by the terms and conditions of delivery referred to above, the following tolerances apply:

a) Paper, in relation to the agreed grammage:

b) Plastic wrapping film, in relation to the agreed thickness:

c) Aluminium foil, multilayer film, cellulose film and other materials in relation to the agreed thickness or grammage (depending on the dimensions underlying the agreement; applies individually or as part of another product):

+/- 10 %

Variations in dimensions

The Buyer must tolerate the following variations in dimensions:

a) Paper and paper composites

- Bags:

- Rolls:

- Formats:

b) Plastics and aluminium +/- 10 %

c) The variations in dimensions for the materials referred to under

a) in relation to rolls and formats and under b) also apply to the positioning of the print as well as to the punching and embossing on these materials. Regarding the bags mentioned under a), the positioning of the print as well as the punching and embossing are subject to a variation in dimensions of +/- 10 mm. Misregistering in printed products cannot be avoided due to technical reasons, as this depends on the material, the execution and the printing procedure used. Only significant variations give rise to the right to raise complaints.

Variations in quantity

In all productions, the Seller has the right to deliver up to 20% more or less than the ordered quantity. In the case of sale by quantity (quantities less than 50,000 pieces), in the case of collective runs with print changes within one print run and in the case of sale by weight (for weights less than 500 kg), up to 30 % of the ordered quantity. Delivery is made and fully invoiced on the basis of the quantity actually delivered.

VIII. PRINTING AND MATERIALS

1. The Seller uses commonly used printing inks for printing. If the inks have to meet specific requirements, such as high light stability, alkali resistance, rub resistance, suitability for contact with food, etc., this requires a special agreement in writing.
2. It is impossible to guarantee the light stability of the colorants used in materials and the printing inks. Likewise, it is impossible to guarantee the abrasion resistance of the printing inks. The Seller reserves the right to deliver goods with minor variations in colour provided that such variations are in line with what is customary in the industry. Such variations do not entitle the Buyer to refuse acceptance of the goods or to a price reduction. Proofs are submitted before the press run if expressly demanded by the Buyer or if necessary in the Seller’s opinion. Since these proofs (e.g. contract proof, Cromalin, offset press proof, etc.) are not produced using flexography, considerable variations compared to the subsequent printing edition are inevitable. On-press proofs requested by the Buyer are invoiced separately on the basis of actual costs.
3. The Seller cannot assume any liability for plasticiser migration or similar migration phenomena and the resulting effects thereof in plastic products.

IX. MATERIAL AND EXECUTION

1. If there are no particular instructions on the part of the Buyer, orders are executed with material customary in the industry and in accordance with known manufacturing methods. Notices of defects relating to how the packaging reacts with the packaged goods and vice versa cannot be given unless the Buyer has pointed out specific characteristics of the packaged goods and has given the Seller the possibility to comment thereon.
2. The object of purchase only meets the requirements it can reasonably be expected to meet, considering the characteristics typical of the material.

X. DRAFTS AND ORIGINALS

Drafts and originals as well as substantial sample work are invoiced separately if no order is placed following the offer made. The samples are the intellectual property of the Seller and must not be used without the Seller’s express approval. The Buyer does not acquire the right to be handed over clichés, tools, films, etc. by paying part of the costs for such items.

XI. RETENTION OF TITLE

1. The Seller has ownership of the goods it delivered until the purchase price has been paid in full.
2. The Buyer is entitled to use the goods delivered to it in the course of regular business dealings, in particular to process and to transfer ownership of such goods. If the delivered goods are re-sold before the purchase price is paid in full, the Buyer’s right to receive payment of such purchase price passes to the Seller, notwithstanding any further liability on the part of the Buyer.
3. Any extraordinary rights exercised by the Buyer over the delivered goods, such as pledging the goods or transferring ownership of the goods as security, are admissible only with the Seller’s written approval. The Buyer notifies the Seller immediately of any rights exercised by third parties affecting the goods delivered subject to retention of title (such as attachment by third parties).

XII. CLAIMS BASED ON DEFECTS, LIABILITY AND EXCLUSION OF LIABILITY

1. Unless specifically provided for in these GTC, the Seller must provide warranty for the goods delivered; at the Seller’s discretion, the Seller can either repair goods in which defects were proven or replace such goods, free of charge, by new goods; in the latter event, the useless goods must be returned to the Seller.
2. In the manufacturing of packaging materials where it is technically impossible to avoid a comparatively low portion of defective goods, it must be tolerated that up to 2% of the total quantity may be defective, irrespective of whether the defect is due to processing or printing.
3. The Seller must be granted the opportunity to ascertain, on site, a defect of which notice was given.
4. Notices of defects must be sent within a reasonable time, but no later than one week after receipt of the goods at their destination, failing which the notices are deemed received too late and do not have to be dealt with any more, see section 377 of the Business Code.
5. The Seller is liable towards the Buyer for any damage or loss only in the event of wilful intent or gross negligence. The Seller’s liability is excluded in the event of slight negligence with the exception of damage to persons. Claims based on defects and loss or damage may be raised only up to the value of the goods delivered, to the extent that this is possible under the law.
6. The Seller is not liable for any consequential damage, lost profit, loss or damage resulting from third-party claims or mere financial loss or damage.
7. If bag manufacture is fully automated, bags are counted automatically. The Seller is entitled to rely on this count in its deliveries and quantity calculations.
8. Inappropriate storage excludes claims for damages in any case.
9. Product liability:
Any duty to pay compensation in the event of damage to property under the Product Liability Act (Produkthaftungsgesetz), Federal Law Gazette no. 99/1988, as well as product liability claims resulting from slight negligence which may be derived from other provisions are excluded, except in the case of damage to persons. These limitations of liability must be fully passed on to any buyers, with the obligation to pass on such limitations to any further buyers.

XIII. PAYMENT

1. Payments are deemed to have been made in time if the Seller has been provided, within 30 days from the invoice date, a statement issued by the credit institution confirming receipt of the payment.
2. If the invoice is not paid within the payment period, the Buyer is deemed to be in default even if no payment reminder is sent. Without prejudice to any other rights, the Seller may invoice default interest in the amount of 2% above the key interest rate of the European Central Bank as currently applicable.
3. Any failure to comply with payment terms due to circumstances which suggest impaired creditworthiness of the Buyer and of which the Seller learns only after the conclusion of the respective agreement results in all outstanding amounts becoming due immediately even if the payment period has been extended.

XIV. RIGHT OF WITHDRAWAL

Events that significantly change the legal basis of the purchase agreement in whole or in part, irrespective of whether such events relate to the sphere of the Buyer, the Seller or the Seller’s suppliers, entitle the Seller to adjust the agreement to the changed circumstances in whole or in part, excluding the right to raise claims.

XV. PLACE OF PERFORMANCE, place of jurisdiction, AND APPLICABLE LAW

1. The registered office or the place of the Seller’s management is the exclusive place of performance and place of jurisdiction. However, the Seller is entitled to bring legal action also in a court at the registered office of its branch establishment or at the registered office or place of residence of the Buyer.
2. The agreements concluded by the Seller are governed exclusively by Austrian law, excluding its conflict-of-laws rules and the UN Sales Convention.