GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT (hereinafter referred to as GTC-DP)

Transcription

1 GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT (hereinafter referred to as GTC-DP) Between the Companies Zellstoff- und Papierfabrik Rosenthal GmbH and Zellstoff Stendal GmbH (hereinafter referred to as Seller) (Version: May 2012) I. Orders and Offers a) Contracts for the sale and purchase of goods shall only be concluded with the Seller s acknowledgement and must be exclusively based on the following GTC-DP. b) We hereby refuse to accept any terms and conditions of the Buyer. These GTC-DP shall be the only subject matter of this Contract, unless the Buyer has within eight (8) days objected to them in writing. Agreements to vary these Terms and Conditions within a specific contractual relationship shall be allowed, but require the written form in order to become valid. II. Quantities, Weights and Moisture Content a) Unless otherwise specifically agreed, the word tonne or ton in this Contract shall mean 1,000 kilograms of air-dry weight, gross for net. The term air-dry shall mean ninety per cent (90%) absolutely dry pulp and ten per cent (10%) water. b) The pulp shall be packed into bales of an agreed weight related to the air-dry content. The bales shall be tied up into eight bale units. Each bale shall be individually identifiable. Therefore, each bale shall be printed with the type, batch and unit numbers to allow at any time the determination of the production date. c) In the event that the Buyer shall dispute the gross quantity supplied, the original proofs of the base weight and the weight delivered shall be submitted.

2 III. Special Method of Delivery a) Unless otherwise agreed, the Seller shall choose the mode of shipment and the shipping route. The Seller can use his own discretion when making his choice. The Seller shall not be obliged to choose the cheapest mode of shipment or the quickest shipping route. Should the Buyer wish to collect, or have collected on his behalf, the goods by road transport, then the Seller shall be required to give his prior consent. b) To facilitate the contracting of a carrier, a delivery margin of up to ten per cent (10%) above or below the agreed quantity shall be permissible, unless otherwise previously agreed. When a Contract includes several part deliveries, the delivery margin shall refer to the total quantity ordered. c) Should stock in the Seller s warehouse be exclusively held to the Buyer s order or produced to order and sold without specific shipping instructions ( call-off items ), then the Buyer shall take delivery of these goods within four weeks of notification of completion. d) Where the Parties have agreed that the Buyer would collect the ordered goods, or have them collected on his behalf, from the Seller s premises, then the Buyer shall take out transport insurance and bear all the costs of such insurance. e) Risk of damage to or loss of the goods shall pass to the Buyer upon the delivery of the goods to the forwarding agent or carrier or any other person to the Buyer. IV. Order on call Should the Parties have agreed on partial consignments, then the Buyer shall be obliged to call off the individual consignments not later than 14 days before the agreed date of the partial delivery. In the event that the call off is delayed, then the Seller shall no longer be obliged to deliver the consignments that have not been called off or called off late. The Seller s right to request the Buyer to take delivery of the consignments or to claim for damages for the contravention of the purchase commitment, respectively, shall remain unaffected. V. Delivery time a) Unless specific delivery dates have been previously agreed, the delivery period shall commence with the date of the posting of the confirmation of the order or the acceptance of the order, and it shall end with the date when the goods leave the factory or the distribution plant or are placed in a warehouse as a result of events occurring under subsection VIII b). In the event that, after the confirmation or acceptance of the order, the Buyer requests changes to the order which have an effect on the production period, the delivery period will only commence with the confirmation of this change. If the Seller, for reasons beyond his control, fails to keep to an agreed extension of time, which must not be less than three weeks, then the Buyer shall have the right to withdraw from the Contract. Seite 2 von 10

3 b) In the event of non-compliance with the delivery dates, the Buyer shall not be entitled to any claim for damages, unless the non-compliance with the terms of delivery is based on the Seller s intent or wilful negligence. VI. Defects in the Delivery a) The goods must be examined immediately upon their arrival at the point of delivery, this also applies to the delivery of samples, and treated according to the principles of sound stewardship. If the Parties have agreed on several consignments, then, without delay, every consignment must be examined separately and any defects must be notified, if appropriate. b) The quality of the goods shall be regarded as being approved, without prejudice to the duties to immediately inspect the goods and send notification of any defects in accordance with Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB), if no notification of hidden defects is sent to the Seller within 14 days of delivery at the place of destination. c) In the event that the Buyer has reported defects to the Seller, he shall immediately make the rejected goods available to the Seller for the Seller s own examination. Should the Parties fail to agree on the existence of a defect, an independent inspection authority will be entrusted by the Parties with the inspection of the goods and determining whether or not the supplied goods are defective. The Buyer and the Seller must agree on a joint inspection authority. If the Parties fail to come to an agreement on this point, the Seller shall be entitled to choose an appropriate independent inspection authority according to his best judgment. The Seller shall immediately notify the Buyer of his choice. The unsuccessful Party shall bear the cost of the inspection. d) The basis for the taking of samples for the purposes of inspection shall be DIN EN e) The Buyer shall be obliged to properly store the goods that he found to be defective, so that the quality of the goods supplied will not deteriorate because of inappropriate storage. f) If the defect manifests itself after processing has started, the Buyer undertakes to inform the Seller of it on the same day by telefax and to immediately grant appropriate options for investigation. The Buyer shall immediately stop the processing started. All reasonable measures shall be taken to minimize damages. g) If the Parties agreed on partial consignments and the Parties disagree on any one consignment with regard to defective delivery, such defective deliveries shall not affect the other consignments. The Buyer shall therefore be obliged to take delivery of and pay for the other consignments free from any defects in accordance with the Contract. Seite 3 von 10

4 VII. Warranties and Liabilities The Seller shall be responsible for defects of the delivery, if the Buyer has properly fulfilled his duties of inspection and notification of defects in accordance with Section 377 German Commercial Code (HGB), as follows: a) As far as the Contract goods supplied are defective, the Seller is entitled to make a replacement delivery free from defects (subsequent performance). A necessary condition for the liability for defects is that the defect is not a negligible one. The Seller shall be entitled to decline subsequent performance for as long as the Buyer does not fully fulfil his obligation to pay to the extent that it is equivalent to the value of the portion of the delivery which is free from defects. b) Should the subsequent performance mentioned in subsection a) fail, then the Buyer shall have the right to decide either in an appropriate reduction of the purchase price or to withdraw from the Contract in compliance with the statutory provisions. This shall apply in particular to any negligent delay or refusal of the subsequent performance for which the Seller is responsible. The aforementioned provisions must also be fulfilled if a different material or a smaller quantity is delivered. If sentence 1 applies, the Buyer may refuse to pay the purchase price in so far as he is entitled to do so as a result of his withdrawal from the Contract or a reduction of the purchase price. c) Unless otherwise stated below (subsection d), any further claims by the Buyer shall be excluded, irrespective of their legal basis, including but not limited to claims for damages for violation of subsidiary obligations under the Contract, tort claims and any other tortuous liability as well as claims for compensation of expenses, excluding those in accordance with Section 439 (2) of the German Civil Code (Bürgerliches Gesetzbuch, BGB). This shall apply to claims, including but not limited to damage to subjects other then the subject of the Contract, and to claims for compensation for loss of profits. The exemption from liability also applies to claims not resulting from deficiency of the purchased object. d) Exclusion from the liability stipulated in subsection c) shall not apply to any damages caused by the Seller, his legal representatives or agents and subcontractors from a danger to life and body or the health of others, as far as such damages are based on negligent contravention. The exemption from liability shall not be applicable either to the Seller s liability for any other damages that are based on deliberate or gross negligence contravention of duties caused by the Seller or his legal representatives or agents and subcontractors. Should the Seller be responsible for a fundamental breach of Contract or violate any major obligation under the Contract, liability shall not be excluded either, but limited to the damages foreseeable for that type of Contract. Exclusion from liability shall not be applicable in cases where the Seller is responsible for personal injury or material damage to goods in private use because the item delivered was faulty under the Product Liability Act. It shall not be applicable either in cases where a guarantee is accepted and a quality is warranted, if a defect especially covered by that gives rise to the Seller s liability. A guarantee or a warranty within the meaning of an extension of liability or an acceptance of a specific initial obligation shall only be regarded as given by the Seller, if Seite 4 von 10

5 the term guarantee or warranty is explicitly mentioned. In the event of any repayment of costs the aforementioned shall apply accordingly. e) Any claim for subsequent performance shall be deemed to have lapsed after one (1) year of the delivery of the items sold. Claims for a reduction of the purchase price and the exercise of the right of rescission under Contract shall be excluded as soon as a claim for subsequent performance has lapsed. f) The following provisions shall apply to any breach of duty outside the warranty of quality and shall neither exclude nor restrict the statutory right of rescission. In addition, none of the statutory or contractual rights and claims, to which the Seller is entitled, shall be excluded or restricted. (1) The Buyer can withdraw from the Contract, if the Seller makes it impossible or is unable to finally fulfil the Contract. The right of rescission under Contract shall not apply in the case of a negligible breach of duty by the Seller. (2) If there is a delay in performance, for which the Seller is responsible, and if the Buyer, after being explained the reasons for the default, allows a reasonable period of time for performance and this final deadline is not kept, then the Buyer shall be entitled to withdraw from the Contract. If, prior to delivery, the Buyer requests on any point a different quality or finish of the delivery item, then the running of the period of delivery will be interrupted until the date of notification of the quality or finish and extended by the period required for the previous specification. (3) Withdrawal shall be excluded if the Buyer is solely or mainly responsible for the circumstances which qualify him for withdrawal, or if the additional circumstances, for which the Seller is responsible, occur only after the Buyer s default of acceptance. In the event of impossibility of performance, the Seller reserves the right, in the above-mentioned cases, to claim compensation subject to Section 326 (2) German Civil Code (BGB). (4) Other claims of the Buyer irrespective of the legal reasons (including but not limited to any violation of subsidiary obligations under the Contract, default, impossibility, and tort) shall be excluded. This shall apply to, including but not limited to, any claim for damages outside the object of sale as well as any claims for compensation of loss of profits; this also covers claims that do not result from any defects in the object of sale. This shall not apply to such an extent as the Seller, his legal representatives or agents have caused the damage or loss with intent or through gross negligence. This shall not apply either as far as the Seller, his legal representatives or agents have culpably caused damage from the danger to the life and body or health of others. Likewise, liability shall not be excluded if a guarantee or warranty is accepted, as far as a defect especially covered by that gives rise to the Seller s liability. Provided that the Seller is responsible for a fundamental breach of Contract or violates a major obligation under the Contract, liability shall not be excluded but limited to the damage foreseeable for that type of Contract. A guarantee or a warranty within the meaning of an extension of liability or an acceptance of a specific initial obligation shall only be regarded as given, if the terms guarantee or warranty were explicitly mentioned in writing. Seite 5 von 10

6 g) The Buyer must notify the Seller in writing of apparent defects within a period of three (3) days after the receipt of the goods. Failing that, assertion of warranty claims for apparent defects of the objects purchased shall be excluded. To observe the deadline, timely posting shall be sufficient. The Buyer shall be required to furnish proof of all and any prerequisites of a claim, including but not limited to the defect itself, the time of discovering the defect, and the timeliness of the letter of complaint. h) If the Buyer chooses to withdraw from the Contract because of a deficiency in title and quality after failed subsequent performance, he shall not be entitled to make a compensation claim for that defect at the same time. If the Buyer chooses compensation for damages after failed subsequent performance, the goods shall remain with the Buyer, if this is reasonable for him. Compensation shall be restricted to the difference between purchase price and value of the defective or faulty item. This shall not apply, if the Seller has maliciously caused the breach of Contract or concealed it; the Buyer bears the onus of proof of malice. VIII. Impossibility of Delivery Performance due to Force Majeure a) In an event of force majeure, the Seller shall have the option of postponing delivery for the period of the interruption, or partly or wholly withdrawing from the Contract, unless adherence to the Contract is a reasonable premise for the Seller. This includes any circumstances that, permanently or temporarily, complicate the delivery or make it not possible to deliver the goods, such as shortage of freight vehicles, obstruction of railways or shipping, strikes, lockouts, natural disaster, fire, war, hostilities, insurrection, acts of authorities, lack of necessary raw materials and factory supplies; breakdown of machinery, production facilities or power failure. In the event of non-delivery by the Seller s own wood suppliers, the Seller shall also be entitled to withdraw from the Contract. If the Seller has already produced parts of the quantity contracted, the Buyer shall be obliged to accept the finished goods on the terms and conditions agreed for the entire Contract. b) If it is not possible to dispatch the goods is because of exceptional circumstances in accordance with subsection VIII a), the goods shall be taken into store on the Buyer s account and risk, or deposited in a carrier s warehouse. The Seller s duty to deliver shall be fulfilled by this warehousing. c) The Party, who wishes to invoke the exceptional provision because of a circumstance mentioned in subsection VIII a), must immediately notify the other Party in writing of this disturbance. The other Party must also be immediately informed of the termination of the disturbance. IX. Payment Terms a) Invoices shall be payable either within 14 days of the invoice date credited to the account of the Seller with a 1.5% cash discount, or within 30 days net. Different payment terms will require a separate written agreement. Seite 6 von 10

7 b) In the event that the Buyer defaults on any payment, then the Seller shall be entitled to request the payment of default interest, in accordance with Section 288 (1) of the German Civil Code (BGB), at a rate of 8 % p. a. above the prevailing base rate. c) Payment for the goods must be made free of charges and will only be accepted by credit transfer. Other means of payment will not be accepted. Credit advices will be sent to the resulting amount after deduction of all costs. The date on which the payment is available to the Seller will be regarded as payment date. d) Any rebates, bonuses and discounts to be allowed by the Seller shall only apply to deliveries for which he receives full payment and against which no claims for compensation have been made. e) If there are several accounts receivable, the Seller shall be entitled to set off payments of the Buyer against costs and interest payments first and then against his accounts receivable in chronological order of payment. The debtor s option in accordance with Section 366 (1) German Civil Code (BGB) shall be excluded in this respect. f) If there is a dispute between the Parties about whether the delivery or partial delivery is in accordance with the Contract, the Buyer shall not be entitled to withhold any payments due until the final clarification about whether the delivery or partial delivery is in accordance with the contract. The Buyer may only offset amounts of admitted or officially recognised claims. X. Default in Payment a) If the Buyer delays payment or acceptance of the delivery, the Seller may within 14 days, after abortive attempts to the setting of a deadline and after the threat of legal proceedings, either claim damages for non-performance or wholly or partly withdraw from the Contract. The Seller also has the right to request acceptance of the quantities that the Buyer delays taking delivery of, but he is not obliged to implement any other parts of the order. The same shall apply if the Buyer delays in taking delivery of just one out of several individual consignments. b) If the Buyer is in default of payment, the Seller shall be further entitled, in addition to withdrawing from the Contract and claiming damages for non-performance, to request interest on arrears in accordance with subsection IX b) of these terms and conditions. XI. Retention of Title a) The Seller shall, as security, retain title in all goods delivered until the Buyer has fully met all of his liabilities, including all current accounts receivable, to which the Seller is entitled for any legal reason now and in the future. In addition, the Buyer hereby, as a security, assigns to the Seller any claims he is entitled to from the resale or processing of the contracted goods subject as hereinafter set out.the Seller accepts the assignment.the aforementioned securities shall be granted to cover all of the Seller s accounts receivable as well as all costs and expenses accruing from their realization. Seite 7 von 10

8 b) If the Buyer violates any of his obligations, especially including but not limited to delayed payment, the Seller shall be entitled, even without the previous fixing of a time limit and without prior withdrawal from the Contract, to retain title, demand the surrender of the delivered goods and/or withdraw from the Contract. The Buyer shall be obliged to immediately return the goods. The Seller s claim to recover possession of the delivered goods shall not constitute a notice of withdrawal, unless withdrawal is explicitley declared. The same shall apply if there are grounds for doubts in the Buyer s solvency (e.g. filed for bankruptcy, temporary illequidity has come to the Seller s knowledge from elsewhere). For the purposes of retaining his title, the Seller shall be allowed enter the Buyer s or any third party s real estate and premises, in which the reserved goods are stored, and take possession of the reserved goods. The Buyer shall bear all costs that accrue from the retention of title. After the giving of a warning and the taking into account of a one-week waiting period, the Seller shall be entitled to sell the goods by private treaty or by auction. The claim shall be satisfied to the extent of the proceeds of sale minus all expenses. The Seller explicitely reserves the right to lodge other claims. c) The Buyer shall be fundamentally entitled to resell the goods in the ordinary course of business after processing. Trading our goods, pledging or transfer as guarantee is fundamentally not permitted. If the goods have already been processed and sold to third parties, the Buyer already assigns to the Seller all claims towards these third parties rights which result from the resale of the processed goods. The assignment is limited to the amount the Seller claims towards the Buyer due to the delivery of goods. The Seller shall accept the assignment. The assignment shall also cover receivables based on different legal grounds incurred or incurring in connection with the realization of the reserved goods (e.g. insurance, tort, indemnification, substitution), including Value Added Tax and all other ancillary claims. In the event that the resold reserved goods are only in the joint ownership of the Buyer, assignment shall only be carried out with regard to the portion of the claim from the resale, which is equivalent to the value of the Buyer s joint ownership share. The Seller shall be entitled, at all times, to disclose the assignment of accounts receivable to any third party and to customers of the Buyer. Following the assignment the Buyer shall be entitled to collect the account. The Seller reserves the right to collect the account himself as soon as the Buyer defaults on a payment, falls into arrears or gives rise to legitimate doubts in the Buyer s solvency (e.g. filed for bankruptcy, temporary illiquidity has come to the Seller s knowledge from elsewhere). In such cases the Seller shall be entitled to immediately revoke the direct debit authorization in favour of the Buyer towards his customers. The Buyer must immediately inform the Seller of the debtors of the accounted receivables, including the debtors addresses and the securities existing for these accounts, and to surrender all relevant documents, including but not limited to trade bills, cheques and other legal tenders. d) The Buyer undertakes to handle the goods with care, store them properly, and to undertake reasonable efforts to protect them from decay, damage or any diminution in weight or depreciation in value. All the required costs for maintaining the quality of the goods shall be borne at the Buyer s expense. The Buyer shall keep the reserved goods in safe custody for the Seller free of charge and adequately insured. Seite 8 von 10

9 e) The Buyer is obliged to inform the Seller immediately of any seizure by any third party of the goods or the accounts receivable assigned to the Seller. The same shall apply to any damage or the destruction of the goods, any transfer of the goods to another place, any change in the Buyer s business location, and any other date relevant for the Seller s safeguarding. f) Retention of title and assignment for security shall be subject to a dissolving condition in such a manner that with the complete satisfaction of all of the Seller s claims, title in the reserved goods or ownership of the accounts receivable, shall pass to the Buyer without further actions been taken. g) Any handling and processing of the goods by the Buyer shall always be carried out on behalf and by order of the Seller. If the goods are processed using objects that do not belong to the Seller, then the Seller shall acquire joint ownership in the new matter in proportion to the value of the goods supplied by him compared to the other goods processed. The same shall apply if the goods are mixed with other objects that do not belong to the Seller. The Buyer s accounts receivable to any third party resulting from the processing or mixing of the goods shall be regarded as being assigned to the Seller in accordance with the provisions in subsection c). XII. Security a) If a deterioration of the Buyer s financial situation comes to the Seller s knowledge, the Seller shall have the right to demand the immediate payment of all outstanding invoices, even those not yet due for payment (as far as the goods have been delivered already), and to require cash payments before delivery of goods for all of the outstanding consignments. b) Before payment of all due amounts already invoiced is received, including interest payments after the due date and interest on arrears, the Seller shall not be obliged to render any further services under any Contract. In addition, the Seller shall have the relevant rights in accordance with Section 326 of the German Civil Code (BGB). c) Delivery on open account shall only be made if the Seller has received a credit insurance from the Buyer and there is adequate credit remaining. In the absence of that, the Buyer shall provide appropriate securities for payment, such as cash in advance, Letter of Credit or banker s guarantee. XIII. Copyright When using his own patterns and artwork, the Buyer shall ensure that no third party s rights have been breached. The Seller s patterns and artwork must not be used without his consent and shall remain his property, even if the Buyer is charged for them. Seite 9 von 10

10 XIV. Final Provisions a) Unless otherwise agreed, the General Terms and Conditions of Sale (AVB) for graphic paper and graphic board for printing applications, issued by the Association of German Paper Mills, shall additionally apply in the version valid at the time of conclusion of the contract. b) These terms and conditions shall in all respects be governed and construed in accordance with the laws of the Federal Republic of Germany. The Seller s registered office shall be the place of performance and payment. The stipulations of the United Nations Convention on Contract from 11 April, 1980 in its current version (CISG- United Nations Convention on Contract for the International Sale of Goods) shall not be applicable. Language of contract is German. c) If the Buyer is a merchant, a public law entity or a special federal fund, the place of jurisdiction for all and any disputes arising under the Contract shall be the competent court at the place of the Seller s registered office. The Seller may also enforce claims in the court competent for the Buyer. The same shall apply if the Buyer has no place of general jurisdiction in Germany, or if his residence or customary place of abode is unknown at the time of instituting legal proceedings. d) Should any provision of these GTC-DP be invalid or unenforceable in whole or in part, now or at any time in the future, the validity of the other provisions shall not be affected thereby. The wholly or partly invalid provisions shall be substituted with a new provision the economic purpose and success of which comes closest to that of the invalid provision. Seite 10 von 10