Vereinigte Papierwarenfabriken GmbH

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Terms of Business, Delivery and Payment Following the Non-Binding Recommendation of Conditions of the General Terms of Business, Delivery and Payment for the Paper and Plastics Packaging Industry of IPV Industrieverband-Papier-und Plastik e.V. to be Used in the Business Dealings with Purchasers
dated 26th. October, 2004

We wish to point out that any and all contracts and obligations are only valid in accordance with the General Terms and Conditions of Vereinigte Papierwarenfabriken GmbH

I.
Scope of Application

1.
Offers, sales and deliveries of the supplier shall be made on the basis of the General Terms of Business, Delivery and Payment. Purchasing conditions of the buyer or any other unilaterally diverging agreements shall be considered accepted only if they are confirmed by the supplier as a supplement to these General Terms of Business, Delivery and Payment.

2.
Reference or counter confirmation of the buyer referring to his purchasing conditions is hereby expressly opposed.

II.
Offers and Conclusion of Contract

1.
The offers of the supplier shall be subject to confirmation until the acceptance by the buyer and can therefore be revoked by the buyer at any time until the receipt of the written acceptance declaration of the supplier.

2.
Offers/orders of the buyer shall always be confirmed by the supplier in writing or by telefax or in text form, unless an immediate delivery or invoicing should take place.

3.
The buyer shall be bound to his order/his offer for 10 working days. This period shall commence as of the receipt of the order/the offer by the supplier. During this period the supplier shall be entitled to reject the conclusion of this contract. If no rejection takes place within this period or if the goods should be delivered during this period, the contract shall also materialise without supplier's written confirmation of the order.

4.
If the buyer should wish any subsequent alterations of the order, such alterations shall only be valid if an agreement on them has been reached by the contracting parties.

5.
Decisive for the owed quality of the delivery item shall be the information contained in its specifications.
The information contained in the catalogues, prospects, circulars, advertisements, illustrations and price lists shall not decide on the quality of the delivery item, unless these are expressly included in this specification with reference to this specification.

6.
Any information in the specifications of the supplier to determine the quality of the delivery item shall not be any guarantee, in particular also not any durability guarantee.
The assumption of any guarantees and the risk of procurement shall expressly presuppose agreements of the parties in which they expressly declare that a guarantee and/or the risk of procurement is assumed.

7.
To ensure a proper production flow we shall invoice the following costs in addition to a processing fee of 250.00 € in case of a unilateral cancellation of the order:

• 3 weeks before the confirmed week of delivery 50% of the contract value
• 2 weeks before the confirmed week of delivery 100% of the contract value

In general, any special materials and reproduction costs incurred shall be invoiced at 100%. The decisive time for the invoicing shall be VP's receipt of the written declaration of the customer.

III.
Prices

1.
The prices mentioned in the offer of the supplier shall be based on the calculations existing at the time the offer is made. If, in case of contracts with an obligation for one of the parties of more than 4 months or in case of contracts for the performance of a continuing obligation, there should be a substantial change of the prices of raw materials (paper or synthetics) of at least 5 % after the offer has been made/the contract has been concluded, the supplier shall be entitled to increase the prices agreed upon by the proportionate additional expenditure. The buyer shall be informed hereof.

2.
In case of variations in quantity/variations in weight, which are within the tolerances regulated in paragraph VII, the calculation of the prices shall be based on the actual quantity to be delivered/the actual weight to be delivered.

3.
Any subsequent alterations requested by the buyer, in particular sketches, drafts, samples and proofs, shall be additionally invoiced to the buyer.

4.
In case the goods should be invoiced according to their weight, the price shall be calculated in accordance with the gross weight if brown wrapping paper and wrapping paper are used.

5.
Unless otherwise agreed, the prices ex works plus the respective value added tax valid in the Federal Republic of Germany shall apply. The costs for transport, insurance, customs etc. shall be invoiced separately.

IV.
Industrial Property Rights/Law on Life-Cycle Management

1.
The printing details made available by the supplier such as drafts, drawings, printing blocks, films, printing cylinders and plates, shall even then remain the property of the supplier if the buyer should make any proportionate payments with regard to the costs. However, in these cases the buyer shall be entitled to reimburse the share in the costs attributed to the supplier to acquire the ownership. The safekeeping period for these printing details shall be at the most 3 years. After the expiration of this period the supplier is allowed to destroy any printing details which have hitherto not yet been demanded back.

2.
In case any copyrights and/or industrial property rights should come into existence at the supplier's when developing and carrying out an order, such rights shall not be transferred by the sale of the object to be delivered. This shall also apply if the buyer should bear a part of the development costs. In particular, the supplier shall be entitled to exploit such copyrights and/or industrial property rights also for orders of any third parties.

3.
Unless agreed otherwise, the supplier shall be entitled to visibly affix his symbol of the firm or an identification number to the objects of delivery manufactured by him.

4.
A remuneration for, among other things, samples, sketches and drafts which are expressly ordered or commissioned by the buyer, shall also be paid in case the main order for which, among other things, the samples, sketches and drafts were made, is not placed.

5.
An examination if the details provided by the buyer infringe any rights of third parties, in particular any copyrights, industrial property rights (registered designs, patents, utility models, trademarks), shall be incumbent upon the buyer. In case any third parties should assert claims against the supplier because of the use, exploitation or duplication of the details and/or copies provided by the buyer resulting in an infringement of copyrights and/or industrial property rights or the infringement of the German Law against Unfair Competition, the buyer shall support the supplier in the defence against such infringement of rights and indemnify the supplier for all and any loss, including the lawyer's fees and the litigation costs incurred by the supplier in this connection.

6.
In case the supplier should, on behalf of the buyer, affix symbols to the products under the Law of Life-Cycle Management in the meaning of the Packaging Regulations (e.g. "The Green Dot"), the buyer shall be considered "the party marketing" the symbol of the Law on Life-Cycle Management in the meaning of the packaging regulations and shall therefore pay the fees.
Even without the imprint of the "green dot" our products shall be subject to the Law on Life-Cycle Management (Duales System Deutschland AG (DSD) or (Vereinigung für Wertstoffrecycling AG (Vfw) waste disposal). In this case the buyer shall pay the fees. The supplier shall pay the fees of the respective waste disposal companies on behalf of the buyer only after a previous written agreement.
In case the buyer should infringe any regulations of the Law on Life-Cycle Management or the Packaging Regulations and therefore claims should be asserted against the supplier, the buyer shall be obliged to reimburse the supplier for all an any expenses incurred in this connection.

7.
In case the buyer should not participate in Duales System Deutschland AG, the buyer agrees to take back the packaging delivered according to the prescriptions of the Law on Life-Cycle Management in the meaning of the Packaging Regulations as amended and to put it to the use prescribed in the Packaging Regulations. If, on the basis of the Packaging Regulations, there should be an obligation of the supplier to take back, the place of performance for the return of the packaging by the buyer shall be the registered office of the supplier.
In case the buyer should culpably infringe the obligations assumed in sentences 1 and 2 and such action should result in a fine imposed on the supplier due to infringement of the Regulation on the Avoidance of Waste Packaging, the buyer shall be obliged to exempt the supplier from this payment obligation. In case the supplier should have paid the fine already, the buyer shall reimburse the supplier for this amount.

V.
Delivery/Delay in Delivery/Force Majeure/Reservation of Self-Delivery

1.
The date of delivery determined in writing in the confirmation of the order shall be considered the delivery time. This delivery time shall be understood ex works, unless it had been agreed otherwise in writing. As far as the buyer has not provided all the documents, permits, releases etc. to be provided by him at least 6 weeks before the delivery date determined in writing, the delivery date determined in writing shall be extended by one month, commencing as of the date on which the documents, permits, releases etc. have been completely received by the supplier.

2.
The term for delivery shall have been observed, if the object to be delivered will have left the works of the supplier before the term of delivery has expired or if, in case of collection by the buyer, the supplier should have informed the buyer of his readiness to dispatch.

3.
Unless otherwise agreed, in case of contracts for delivery on call, the buyer shall be obliged to determine in advance delivery schedules covering at least a period of 6 months and to call them in time according to the delivery schedules determined before the respective delivery date. In case the buyer should not or not in the way determined comply with this obligation, the supplier shall, after having fixed a reasonable period of time, be entitled to carry out the call and/or the scheduling himself, to deliver the goods or to withdraw from the contract. The right to demand damages due to failure to comply with one's duty shall not be excluded by the withdrawal from the contract.

4.
Claims for damages against the supplier due to delay in delivery or due to performances not provided shall be excluded as far as there is no gross negligence or intent of the supplier, his executives or persons employed in the performance of an obligation (Erfüllungsgehilfe). This limitation of liability shall not apply in case of a breach of substantial contractual obligations (cardinal obligations) the supplier is responsible for.
In case claims for damages may be asserted against the supplier due to simple negligence (infringement of cardinal obligations), the claim for damages shall be limited to the typically foreseeable damage. In such cases claims for damages due to loss of production and/or lost profit shall be excluded. This limitation of liability shall apply to the conduct of the persons employed in the performance of an obligation (Erfüllungsgehilfe) mutatis mutandis.
A right to rescind the contract, if any, which the buyer may be entitled to due to these facts, shall not be affected by this limitation of liability.

5.
In case the supplier should be hindered to comply with his obligation after the conclusion of the contract by the occurrence of unforeseeable, unusual circumstances, which cannot be averted in spite of the diligence which can be reasonably expected according to the circumstances of the case, in particular operational breakdowns, official sanctions and interventions, delays in the delivery of essential raw material, energy supply problems etc., the term for delivery shall be extended by a reasonable period of time. In case the delivery should become impossible by these circumstances, the supplier shall be released from his obligation to deliver.
These regulations shall also apply in cases of lock out and strike.
In case the supplier should establish that in spite of a careful selection of his subcontractor and in spite of concluding the necessary contracts at reasonable conditions, he did not receive the delivery in due time, the term for delivery shall be extended by the time of the delay which was caused by the delayed delivery of the subcontractors. In case the delivery of the subcontractor should be impossible, the supplier shall be entitled to withdraw from the contract. The supplier agrees to assign claims, if any, he is entitled to assert against his subcontractor due to non-delivery or delayed delivery to the buyer.
If the hindrances mentioned above should continue to exist for more than one month, the buyer shall be entitled to withdraw from the contract with regard to the not yet performed part of the contract.
If the delivery time should be extended in the cases mentioned above or if the supplier should be released from his obligation to deliver, claims for damages and rights of cancellation, if any, of the buyer which might result from this shall be dropped, with the exception of the right of cancellation after the expiration of one month.
The supplier may claim the circumstances mentioned above only if he has immediately informed the buyer of such circumstances.

6.
A termination of the contractual relationship due to delay of delivery shall require a default of the supplier and shall also require the fixing of a reasonable period of time with the threat that after the expiration of the period fixed the contractual relationship will not be continued by the buyer.

VI.
Packaging and Shipping

The supplier shall be liable for a proper packaging customary in this trade. However, his liability shall be limited to intent and gross negligence. The right of the supplier to make an objection of a contributory fault, if any, vis-à-vis the buyer, shall not be affected.

VII.
Tolerances

1. Deviations in Weight
Deviations of the area weight shall be tolerated by the buyer to the same extent as they are to be tolerated by the supplier according to the terms of delivery of the manufacturers of the material used.
Unless the aforementioned terms of delivery do not provide otherwise, the following tolerances shall apply:

a)
Paper with regard to the area weight agreed:
up to 39 g/m2 +/- 8 %
40 - 59 g/m2 +/- 6 %
60 and more g/m2 +/- 5 %

b)
Plastic foils with regard to the thickness:
smaller than 15 my +/- 8 %
from 15 my - 25 my +/- 15 %
greater than 25 my +/- 13 %

c)
Aluminium foil, compound foil, cellophane and other material with regard to the thickness agreed or with regard to the area weight (depending on which dimension the contract is based upon; shall apply individually or as part of another product):
+/- 10 %

2. Deviations in Measure
The following deviations in measure are to be tolerated by the buyer:

a)
Paper and paper combinations
Bags:
in the length (=height of bag) +/- 4%
in the breadth for bag breadths below 80 mm +/- 3 %
in the breadth for bag breadths from 80 mm and more +/- 2%
Rolls:
in the breadth and in the repeat length +/- 3 mm
in the length +/- 3 %
Formats:
in the length +/- 5 mm
in the breadth +/- 5 mm

b)
Plastics and aluminium (bag heights) +/- 5 %
Bag breadth greater than 200 mm +/- 5 %
Bag breadth smaller than 199 mm +/- 10 %

c)
The deviations in measurements mentioned under a) regarding rolls and formats and the material mentioned under b) shall also apply to the position of the imprint as well as the punching out and the embossing on these materials. As to the position of the imprint as well as the punching out and the embossing with regard to the bags mentioned under a), a deviation from the breadth of +/- 4 mm shall apply to bag breadths of more than 80 mm and of +/- 3 mm for bag breadths of 80 mm and less. In case of printed products tolerances of the register cannot be avoided for technical reasons since they depend on the material, the execution and the printing method. Only substantial deviations shall entitle to a complaint.

3. Deviations in Quantity
In case of all manufactures the supplier shall be entitled to additional and short deliveries up to 20 % of the ordered quantity. In case of sales according to quantities (quantities below 50,000 units and in case of collective editions with printing changes within the edition as well as in case of sales according to weight (for weights below 500 kg) up to 30% of the quantity ordered. The delivery shall be effected with full invoicing of the actual quantities delivered.

4. Colour of the Paper, Raw Material, Paper and Foil
Invariable raw material colours within a delivery and in case of repeat orders cannot be guaranteed.

VIII.
Printing

1.
The supplier shall make use of the usual printing inks for the printing. For the printing of medical sterilisation packaging the colours shall be sterilisation-fast only with regard to the mentioned sterilisation methods according to the specifications and data sheets. In case special demands are made on the colours such as e.g. high light fastness, alkali fastness, abrasion resistance, suitability for the contact with foodstuffs etc., the buyer shall particularly point out to this when placing the order.
No guarantee can be given for the light fastness of the material and printing inks since also the subcontractors of raw material and printing inks give no guarantee for the light fastness of the colours. In addition, no guarantee can be given for the abrasion resistance of the printing inks.
The supplier shall reserve himself smaller deviations of the colour, as far as they are customary in the trade. Water colours printed on brown paper are subject to continuous deviations in colour, i.e. also within a delivery as well as in case of repeat printings. They shall not entitle the buyer to refuse the acceptance of the goods or to a price reduction. Proofs shall be submitted before the printing if the buyer expressly requests it or the supplier considers it necessary. Since these proofs (e.g. proof, cromalin, offset proof etc.) are not made by flexo print, considerable deviations cannot be avoided in some cases in the subsequent edition printing. Proofs ex machine requested by the customer shall be invoiced separately according to the expenditure.

2.
In case of synthetics, the supplier cannot assume any liability for migrations of softeners or similar migration effects and the consequences resulting from them. However, any claims for damages due to gross negligence or intent on the part of the supplier shall not be affected.

3.
The supplier shall neither be liable for the consequences of errors in the film masters or other similar material which were delivered to him by the buyer for the printing of the uniform product code or any other similar code, nor for the difficulties or their consequences which may appear when using the imprinted codes. By the film masters delivered by the buyer we also understand the proofs of printing works containing a uniform product code approved by the buyer.

4.
The printing of the EAN bar code shall be effected according to the state of the art and taking into consideration the relevant Realisation Regulations of CCG (cf. series co-organisation, issue 2, The EAN-Bar Code).
Any further promises, in particular statements on reading results at the commercial sales desks cannot be made due to influences, if any, on the bar codes after delivery by the buyer and in lack of uniform measurement and reading methods.

5.
The supplier shall not be liable for defects which are caused by the printing plates and copies made available by the buyer and/or his persons employed in performing an obligation (Erfüllungsgehilfe) and/or vicarious agents (Verrichtungsgehilfe). In case the supplier should discover text or image errors during the production and discontinue or interrupt the manufacturing due to these errors, the buyer shall bear the additional costs connected herewith.

IX.
Material and Execution

1.
Without any particular instructions of the buyer the execution of the orders shall be carried out with the material customary in the trade and according to the known manufacturing methods. As far as the use of the packaging for foodstuffs or medical products is concerned, the suitability of the material for foodstuffs shall be expressly clarified with the supplier in conformity with the relevant standards (e.g. EN 868). Subsequently, complaints with regard to the behaviour of the packing material towards the filling material and vice versa cannot be lodged if the buyer has not expressly pointed out particular properties of the filling material and/or the use for foodstuffs or medical products and has given the supplier the opportunity to comment the matter. Such indications and comments shall be made in writing.

2.
Recycled raw material shall be carefully selected by the supplier. However, every batch of reclaimable foils and recycled papers may show deviations of the surface condition, colour, purity, odour and physical values which shall not entitle the buyer to lodge any complaint with regard to a defect. However, the supplier shall agree to assign to the buyer warranty claims and/or claims for damages, if any, due to the quality of the reclaimable foils and the recycled papers which the supplier is entitled to assert against the subcontractor.

X.
Reservation of Title

1.
The goods delivered shall remain the property of the supplier until they have been fully paid.

2.
The buyer shall be entitled to resell the reserved goods in the ordinary course of business; however, the buyer shall be permitted a pledging or transfer of ownership by way of security only with the consent of the supplier. The buyer shall agree to secure the rights of the supplier when reselling the reserved goods on credit.

3.
The buyer shall already now assign any claims of the buyer resulting from the resale of the reserved goods to the supplier; the supplier shall accept the assignment. Notwithstanding the assignment and the collection rights of the supplier, the buyer shall be entitled to collection as long as he complies with his obligations towards the supplier and does not get into the situation of dwindling assets. Upon request of the supplier the buyer shall make available the information on the assigned claims required for the collection, in particular a list of the debtors, indicating their names and addresses, the amount of the claims and the date of the invoicing and the buyer shall inform the debtors of the assignment.

4.
The buyer shall carry out on behalf of the supplier a working up and processing, if any, of the reserved goods without any obligation resulting from it for the supplier. In case of processing, combining and mixing the reserved goods with other goods not belonging to the supplier, the supplier shall be entitled to the co-owner's share in the new object resulting hereof in the proportion of the invoice value to the remaining processed goods at the time of the processing, the combination or mixture.
If the buyer should acquire the exclusive property of the new object, the contracting parties agree that the buyer shall grant to the supplier a co-owner's share in the new object in the proportion of the invoice value of the processed, combined or mixed reserved goods and that the buyer shall keep it in safe custody for the supplier free of cost.

5.
In case the reserved goods should be resold together with other goods, irrespective of whether without or after a processing, combination or mixture, the above mentioned assignment of future claim shall only apply to the amount of the invoice value of the reserved goods which are resold together with the other goods.

6.
The buyer shall inform the supplier immediately about any execution measures of third parties on the reserved goods or the claims assigned in advance, delivering to him the documents required for an intervention.

7.
The authorisation of the buyer to dispose of the reserved goods and to collect the claims assigned shall expire in case of default of payment of the buyer, in case of protesting of bills or cheques as well as in case of dwindling assets of the buyer, in particular in case of filing a petition for instituting composition and/or bankruptcy proceedings. In such cases the supplier shall particularly be entitled to take possession of the reserved goods and the buyer shall be obliged to return the reserved goods to the supplier after the supplier has withdrawn from the contract.

8.
It is made clear that in case of a financing of cheques and bills the title to the delivered object shall not devolve on the buyer until the bills have been completely honoured and the amounts of the bills paid.

9.
In case the buyer should be in default with his payments to the supplier twice within 6 months and/or in case the buyer should be insolvent and/or his insolvency should become apparent on the basis of objective criteria, the supplier shall be entitled to claim back the object delivered after the withdrawal from the contract or in case of resale to collect the claims assigned to the supplier directly from the customer of the buyer.

10.
The supplier shall agree to release the securities he is entitled to according to the aforementioned dispositions upon request of the buyer as far as their value exceeds the claim by 10 % or more. The supplier shall decide in his reasonably exercised discretion which securities the supplier will release.

XI.
Notice of Defect/Defects

1.
The buyer's duties to examine and to give notice of defects shall be subject to § 377 of the German Commercial Code (HGB).

2.
In case of larger deliveries of similar goods, the entire batch delivered can be rejected as defective only if the defects have been discovered by a recognised representative sampling procedure.

3.
If the entire quantity delivered of flexible packagings or machine-made bags should show defects of up to 3 % of the entire quantity, neither the entire quantity can be rejected as defective nor any defects can be claimed because of these at the most 3 % of defective objects delivered. In this respect it is of no importance whether the defect is due to the processing or the printing.
All and any defects shall be notified immediately and in writing.

4.
The supplier shall be given the opportunity to discover defects of the delivery given notice of in situ. Along with his notice of defects the buyer shall deliver to the supplier convincing samples with the material and delivery identifications belonging to them.

XII.
Material Defects/Prescription Periods

1.
In case the object delivered should not be free from material defects or in case the supplier should have given a guarantee for certain quality features, he shall, at his choice, remedy the defect or deliver an object free from defects.

2.
In case the subsequent improvement should fail after an unsuccessful second attempt, the buyer may, at his choice, withdraw from the contract or reduce the purchase price.
In case the material defect should be due to gross negligence or intent of the supplier, his persons employed in the performance of an obligation or vicarious agents or in case the defect should be based on a breach of substantial contractual obligations (cardinal obligations) the supplier is responsible for or on an injury to body, life or health or in case the supplier should have given a guarantee for certain quality features or in case the Law on Product Liability should be applicable, the buyer may, in addition to the withdrawal or the reduction of the purchase price, also claim damages because of the material defect.
In case the breach of cardinal obligations should be based on simple negligence and in case this should cause a financial or material damage to the orderer, the claims for damages shall be limited to the typically foreseeable damage.
Damages for loss of production and/or lost profit shall be excluded in cases of simple negligence.
This limitation of liability shall apply to the persons employed in the performance of an obligation or vicarious agents of the supplier mutatis mutandis.
The aforementioned limitation of liability/the aforementioned exclusion of liability shall in particular also apply to damage which is attributed to the fact that the abrasion resistance, the light resistance, alkali fastness, resistance to rubbing and water resistance of the colours used are not sufficient, the arrangement of codes and numbers is not correct, the coding pattern is not readable when being copied to the objects to be manufactured for delivery, the coding is impossible to be read in case flexible material is used, the packaging is impaired by the object of delivery or the object of delivery does not correspond to the legal dispositions to be complied with for the filling material.
This limitation of liability/this exclusion of liability shall also apply to damage based on printing details (drafts, films, printing plates etc.).
The application of the Law on Product Liability shall not be affected by this limitation of liability.

3.
In case the supplier should decide for a subsequent improvement, he shall bear the costs required for the subsequent improvement. Any costs which accrue because the delivery object has been brought to another place than the registered office or the destination agreed in the contract of the buyer, shall be borne by the buyer.

4.
There exist no warranty claims of the buyer as far as the supplier is not liable for them according to VII., VIII., IX. and XI.
In case the buyer should have asserted any claims against the supplier under the liability for defects and should it turn out that there exists no defect or that the defect claimed is based on a circumstance which does not oblige the supplier to comply with his warranty obligation, the buyer shall reimburse the supplier all and any costs incurred by the supplier in this connection.

5.
The regular prescription period for defective objects of delivery which are usually not used for buildings, shall be 1 year as of the delivery of the object of delivery to the buyer.
In case the supplier should have granted a durability guarantee, the claims due to this durability guarantee shall be barred with the expiration of the duration for which the durability guarantee was given. This period shall commence with the delivery of the object of delivery for which the durability guarantee was given.

6.
Claims of the buyer in case of defects due to an inconsiderable reduction of the value or the fitness of the object of delivery shall not exist. The limitation of liability shall not apply to claims of damages for a material defect due to gross negligence and intent or one leading to an injury to body, life and health.

7.
In case the objects of delivery are used objects, all and any claims for material defects shall be excluded. This exclusion shall not apply to any claims for damages in case of gross negligence or intent, to a breach of substantial contractual obligations (cardinal obligations) as well as in case of an injury to body, life and health on the part of the supplier, his executives or persons employed in the performance of an obligation for which they are responsible.

XIII.
Other Claims for Damages

1.
The liability of the supplier for material defects or defects of title or delays in delivery or non-delivery shall not be covered by this paragraph (paragraph XIII). To this liability the regulations of the paragraphs V., VII., IX., XIV. of these General Terms of Sale, Delivery and Payment shall apply.

2.
Any claims for damages against the supplier due to other infringements of duties of the supplier, in particular of protective duties and/or due to obligations similar to a legal transaction shall be excluded, unless a gross negligence or intent and/or a breach of substantial contractual obligations (cardinal obligations) and/or the injury to body, life and health exist on the part of the supplier or his persons employed in the performance of an obligation or his vicarious agents for which they are responsible.
In case claims for damages may be asserted against the supplier due to simple negligence, the claim for damages shall be limited to the typically foreseeable damage.
In case of simple negligence, the liability due to loss of production and/or lost profit shall be excluded.

3.
This limitation of liability according to paragraph 2 shall apply to claims resulting from offences mutatis mutandis.
The liability according to the Law on Product Liability shall not be affected by this regulation.
Any claims for damages due to the infringements of the other obligations regulated by this paragraph which are not based on a material defect shall be barred within one year as of the end of that year in which the claim came into existence and the buyer has acquired knowledge of the circumstances the claim is based upon or would have had to acquire knowledge of without gross negligence. The maximum periods regulated in § 199 paragraphs 2 and 3 of the German Civil Code (BGB) shall continue to apply.
This limitation of the prescription periods shall not apply to claims for damages due to gross negligence or intent, a breach of substantial contractual obligations (cardinal obligations) as well as an injury to body, life, health and freedom as well as a violation of the Law on Product Liability on the part of the supplier or his persons employed in the performance of an obligation or his vicarious agents for which they are responsible.

XIV.
Industrial Property Rights

1.
Any claims for damages against the supplier, his persons employed in the performance of an obligation or his vicarious agents due to the infringement of trademarks, patents, patent applications, utility models, registered designs and copyrights shall be excluded, unless there should exist gross negligence or intent of the supplier, his persons employed in the performance of an obligation or his vicarious agents or the supplier should have guaranteed the non-infringement of the aforementioned industrial property rights.
This limitation of liability shall not apply if the supplier, his persons employed in the performance of an obligation or his vicarious agents are responsible for a breach of substantial contractual obligations (cardinal obligations).
In case claims for damages may be asserted against the supplier or his persons employed in the performance of an obligation or his vicarious agents due to simple negligence (violation of cardinal obligations), the damages shall be limited to the typically foreseeable damage.
In case of liability due to simple negligence, the liability for loss of production and lost profit shall be excluded.
This limitation of liability shall apply to the conduct of the supplier's persons employed in the performance of an obligation.

2.
The buyer's right to withdraw from the contract due to the infringement of the aforementioned industrial property rights shall not be affected.

3.
As far as any claims for damages should be asserted against the supplier due to property rights of any third parties, the buyer shall not have furnished evidence of this defect of title until a non-appealable judgement will have been passed against him in this matter. The right of the buyer to give third party notice to the supplier shall not be affected by this regulation.

XV.
Suspension of the Statute of Limitations in Case of Proceedings

Negotiations on material claims or other claims for damages shall only be in progress if the parties have declared in writing to negotiate on such claims. In case invoking such requirement of the written form should constitute an abusive exercise of a right, no party may invoke the observation of such requirement of the written form.

XVI.
Terms of Payment

1.
Payments shall be due on the date of payment agreed. In case no date has been determined for payment, the payments shall become due with the receipt of the invoice or a corresponding statement of payments. If the receipt of the invoice or the statement of payments is uncertain, the payments shall become due with the receipt of the deliveries and the performances of the supplier.

2.
In case of accounts of the supplier which are still open, payments shall always be considered to repay the oldest debt due, unless this debt should be a debt against which the buyer has asserted a right of retention.

3.
In case the buyer should be in default of payment with regard to previous deliveries and/or should there occur an essential deterioration in the financial condition of the buyer after the conclusion of the contract by which the claim of the supplier to a counterclaim should be endangered, the payment shall be effected concurrently against the delivery of the objects to be delivered. The buyer can avert such concurrent delivery by providing a security with regard to the corresponding delivery to the amount of the purchase price or against cash in advance.

4.
The buyer shall not be entitled to set off against claims of the supplier as far as such claims are not uncontested or legally established.

XVII.
Place of Performance/Place of Jurisdiction/Applicable Law, Miscellaneous

1.
Unless agreed otherwise, the place of performance for the delivery, performance and payment shall be the registered office of the supplier.

2.
Exclusive place of jurisdiction for all and any disputes resulting from the contractual relationship existing between the parties on which these deliveries and performances are based, shall be the registered office of the supplier. However, the supplier shall be entitled - but not obliged - to sue the buyer also at the registered office of the buyer.

3. To the legal relationships of the parties with regard to the deliveries and performances agreed, the German law, to the exclusion of the Convention Relating to a Uniform Law on the International Sale of Goods (CISG), shall apply.

4.
Collateral agreements, reservations, alterations and supplements shall be made in writing.

5.
In case a provision in these General Terms of Business, Delivery and Payment or a provision under any other agreement with regard to the contract for delivery should be or become invalid, this shall not affect the validity of all the other provisions or agreements.

6.
Unless expressly agreed otherwise above, conclusions of contracts as well as alterations of and supplements to concluded contracts shall require the written form.