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General Terms & Conditions

State: 2009

1. Scope, orders and offers 

  1. The following general terms of delivery and payment apply to all current and future business relationships. They do not apply to legal relationships with consumers as defined in § 13 of the German Civil Code (BGB). This applies as well if Steinbeis Papier Glückstadt GmbH & Co. KG (hereinafter the "Seller") does not expressly make reference again to these terms and conditions later on. Any different, conflicting or additional general terms and conditions of the Buyer, even if known, do not become part of the contractual relationship, unless their application is specifically agreed to in writing.  
  2. Purchase agreements are concluded only after a written confirmation by the Seller and that is exclusively on the basis of the following terms of delivery and payment.  
  3. If the Buyer orders the object of sale electronically, the receipt of the order shall immediately be confirmed by the Seller. The confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt may be combined with the declaration of acceptance.  

 

2. Special modes of delivery

  1. Unless otherwise agreed, the Seller can choose the shipment mode and the dispatch route according to its best discretion without any liability for cheapest or fastest shipment. If the Buyer wants to collect the object of sale by freight vehicle or have it collected, this requires the prior consent of the Seller.
  2. If delivery free of carriage charges has been agreed, without the transport of the consignment having been paid or the transportation charges having been deducted from the invoice, the Buyer shall advance the freight charges and may deduct them from the invoiced amount. Freight shall be paid according to the current shipping rates on the day of the invoice.                                                                              
    Each increase of the freight charges due a subsequent alteration of the kind of shipment, the dispatch route, the destination or due to surcharges because of small consignments, high tide and frost or similar circumstances that have an effect on the freight costs shall be borne by the Buyer.
  3. No reimbursement due to freight savings following a change of destination or other circumstances that have an effect on the freight costs will be made.
  4. As far as the detailed specification of form, measurement or other circumstances concerning the delivery has been reserved to the Buyer, this right shall be exercised at the latest 3 weeks before the confirmed date of delivery.  
  5. In the cases in which goods from the Seller's warehouse are being kept ready for the exclusive disposal of the Buyer or being sold for fabrication without shipping specification, the Buyer shall accept delivery of these goods within 4 weeks after the notification of completion.
  6. As far as a war risk and transport insurance is concluded, the costs shall be borne by the Buyer.                                                                                              
    The Buyer may not reject this invoicing if its object of sale is part of a larger transport. This also applies if the Buyer does not want the assurance for its batch.

 

3. Passing of risk

The risk is transferred to the Buyer

  1. at the moment of loading onto the means of transportation chosen by the Seller at the Seller's works; this also applies to deliveries free domicile,
  2. with the duly notified availability for disposal at the Seller's warehouse in the case of an object of sale that must be collected by the Buyer from the Seller,
  3. for objects of sale concerning which the Buyer is in default of acceptance.

 

4. Delivery

  1. If precise delivery dates have not been agreed, the delivery period starts at the date of the confirmation of the order and ends on the day on which the object of sale leaves the delivering factory or the dispatch centre or is being put in storage because of an impossibility of shipment as defined in 5 b). If the Buyer modifies the order after confirmation of the order or acceptance of the order in a way which affects the duration of production process, the delivery period only starts with the confirmation of the modification. If the Seller does not meet a scheduled delivery period due to reasons for which it is responsible, the Buyer shall have the right to withdraw from the contract after a lapse of a reasonable extension.
  2. In the event of failure to keep the scheduled delivery dates, the Buyer may not claim compensation for damage, unless the non-compliance with the delivery period is based on intentional or gross negligent acting of the Seller.
  3. The Buyer shall confirm the receipt of the goods by signing the delivery note of the Seller on their acceptance.

 

5. Delivery problems due to force majeure or similar circumstances

  1. The Seller shall be released from the obligation to deliver as far as the delivery of the object of sale is not possible or may not reasonably be expected taking into consideration all circumstance of the case due to force majeure or similar circumstances. If the delivery of the object of sale due to events as defined in the first sentence is only temporarily made impossible or unacceptably difficult, the obligation to deliver shall be suspended for the period during which the impediment to performance subsists. In such a case the Buyer shall not be authorised to withdraw from the contract, unless the continuation of the agreement has become unacceptable for the Buyer due to the delay in delivery. 
  2. If the delivery of the object of sale is impossible or unacceptably difficult due to force majeure or similar circumstances for a period of at least 120 consecutive days, both the Seller and the Buyer shall be entitled to withdraw from the contract as a whole or in part.
  3. Claims for damages for default or for delayed delivery shall be excluded as far as the default or the delay are due to force majeure or similar circumstances.
  4. Force majeure is an external event without any operational context that cannot be averted, even with the utmost diligence that can reasonably be expected. A case of force majeure includes, but is not limited to war, epidemics, commercial blockades, embargoes, shortage of raw materials and lack of transport services.
  5. A similar circumstance is every event that is beyond the controllable sphere of influence of the concerned party and cannot be averted nor foreseen, even with the utmost diligence that can reasonably be expected. A situation can in particular be considered such an event as far as suppliers are partly or in whole released from their obligation to deliver by law, in the case of substantial price increases for such deliveries, in the case of industrial actions and other business interruptions or disturbances for which the party is not responsible.
  6. The Seller shall inform the Buyer in writing as quickly as possible of the occurrence of a case of force majeure or a similar circumstance under specification of the concrete reason and shall inform the Buyer of how far the fulfilment of the agreement will be influenced thereby.

 

6. Defects of the delivery and complaints

  1. The object of sale shall be inspected immediately upon arrival at the place of destination, even if samples were sent. The object of sale must be handled with the due care of a responsible businessman. 
  2. The condition of the object of sale shall be deemed approved, if a notification of defects is not immediately, 

    • that is in case of obvious deviations of the delivery from the order concerning the quality/kind or quantity within 5 business days after the arrival of the object of sale on the premises of the Buyer,  
    • in case of defects or irregularities that can be discovered by superficial examination or simple control, before starting the processing, at the latest within 10 days after the receipt of the object of sale and  
    • in case of hidden defects not within 12 months after the arrival of the object of sale on the premises of the Buyer, 
    • received in writing by the Seller. 

    After the delivered object of sale has been used or processed any liability shall be excluded. 
     
  3. If the Buyer is an entrepreneur, the Seller may initially at its choice either remedy the defects of the object of sale or replace it (supplementary performance). If the supplementary performance fails, the Buyer may in principle demand at its choice either a reduction of the remuneration (statutory right to reduction) or the rescission of the contract (statutory right to rescission). In case of a minor breach of contract, that is in particular in case of minor defects, the client shall not be entitled to demand the rescission of the contract.  
  4. Claims for defects become time-barred a year after the date of delivery. In the event of repair of defects of the delivered object of sale the warranty period for these repair services to which these terms and conditions apply accordingly is one year. The statute of limitation for other parts of the object of sale that are not affected by the repair work is not extended by the repair work. 
  5. The Buyer does not receive any guarantees in the legal sense from the Seller. Manufacturer warranties remain unaffected. 

 

7. Limitation of liability

  1. Claims for damages of any kind, even where such claims have a connection with claims for defects of the Buyer, are excluded. This limitation of liability does not apply if the Seller or its vicarious agents acted intentionally or with gross negligence, in case of foreseeable damages due to the breach of fundamental contractual obligations by the Seller or its vicarious agents or in the case of injury to life, body or health due to a breach of duty attributable to the Seller.
  2. All claims for damages of the Buyer due to a defect are time-barred at the latest one year after the delivery of the object of sale if the statutory period of limitation is not shorter. This does not apply in case the Seller can be accused to have acted intentionally or with gross negligence as well as in the case of injury to life, body or health of the contractual partner attributable to the Seller.

 

8. Quantity, measure and weight tolerances

The determination of the difference between the ordered and the delivered quantity takes place after the delivery of the order or that part of the order, which is subject to the same delivery period and refers to a single quality and a single format. Depending on the importance of the delivered quantities the customary tolerances in the trade apply, listed in the General Terms and Conditions of Sale (AVB) for graphic paper and graphic cardboard for printed purposes (as of January 1984, Article 12) of the German Paper Factories Association (VDP) and in the General Terms and Conditions of Sale (AVB) of the Paper and Board Manufacturers of the European Confederation of Pulp, Paper and Board Industries (as of 1991) CEPAC.

 

9. Conditions of payment

  1. The written agreements between the Buyer and the Seller apply. In these cases the term of payment begins regardless of the agreed period always with the date of invoice.
  2. Payments shall be made duly so that the Seller can dispose of the concerned invoiced amount on the last day of the payment or the discount period respectively.
  3. If no other individual contractual agreements are made on the front side, the following applies: invoices of the Seller are payable within 30 days from the date of invoice without discount. Payments shall be made duly so that the Seller can dispose of the concerned invoiced amount on the last day of the payment respectively the discount period.
  4. The Seller may terminate a commercial credit granted to the Buyer by giving 30 days notice to the end of a calendar month, for serious cause also without notice. If payments by bill of exchange have been agreed, the maturity of the commercial credit is extended to the due date of the bill of exchange. As far as the Seller grants reductions in prices, rebates and discounts, they only apply to deliveries for which he receives full payment without legal action. If several claims are outstanding the Seller may offset the payments made by the Buyer against its claims in the sequence of the due dates of these payments. The right of determination of the debtor/Buyer according to § 366 I BGB is excluded accordingly.  

 

10. Default

  1. In case of default of the Buyer with payment or acceptance, the Seller is entitled, after setting a period of grace of 14 days without result, to claim damages for default in addition to the default interests respectively the due date interests and/or it can partly or in whole withdraw from the contract.
  2. Furthermore the Seller is entitled to demand acceptance of the quantities concerning which the Buyer is in default of acceptance, but it has no obligation to execute further parts of the order. The same applies if the Buyer is in default of acceptance concerning only one of several individual orders. 

 

11. Retention of title

  1. The Seller reserves the title to the delivered objects of sale until complete payment of all claims of the Seller against the Buyer deriving from the business relationship, in case of cheque and bill transactions, including the bills of exchange discounted by the Buyer itself, until their encashment or discharge. If current account has been agreed between the parties to this contract, the retention of title provides security for the balance claim of the Seller. In the event of default of payment or deterioration of its financial situation the Buyer shall return the object of sale to the Seller at its request. In the event of the suspension of payments the object of sale shall be set aside without request and kept available for the Seller.  
  2. The use or processing of the delivered objects of sale by the Buyer takes place without any obligation of the Seller under the exclusion of the acquisition of ownership according to § 950 BGB. In the event of processing together with other objects of sale that do not belong to the Seller, the common ownership belongs to the Seller in proportion of the value of the reserved goods to the other processed objects of sale at the time of processing. 
  3. The Buyer is entitled to sell the object of sale belonging to the Seller according to section a) or b) within the scope of proper business management. The Buyer may not pledge the object of sale or assign it as a security. Already now the Buyer assigns the claims against its purchasers accruing from the sale to the Seller. If the value of the Seller's existing security exceeds the total claim of the Seller by more than 20%, the Seller shall be obligated at the purchaser's request, to release securities to this extent at the Buyer's choice. The Buyer shall insure the object of sale belonging to the Seller against all risks of storage and provide the Seller with proof of this insurance upon request.
  4. The Seller and all its affiliates are entitled to exercise all claims and rights as well as ancillary rights vis-à-vis third parties on their own in their own name, in particular the exercise of complaints, statements of set-off, enforcement of rebates etc. There is in so far a relationship of mutuality between the Seller and the Buyer concerning the rights of the Seller.   

 

12. Security of the Seller

  1. In case of a deterioration of the financial situation of the Buyer or in case of default of the Buyer the Seller is entitled to demand immediate payment of all outstanding invoices, both for those that are payable and for those for which payment is not yet due and to request cash payments for all outstanding deliveries before handover of the object of sale.
  2. As far as payable invoiced amounts along with ancillary claims have not been paid completely, the Seller is not obliged to provide further services from any current contract. Furthermore the Seller is entitled to the rights according to §§ 281, 323 BGB.
  3. The set-off of contested counterclaims against payable invoiced amounts as well as any deductions are not permitted. It the Buyer is an entrepreneur it shall not be entitled to withhold payment of due invoiced amounts until the problem is solved nor to short-pay invoiced amounts.   

 

13. Place of performance, applicable law, jurisdiction

Place of performance for delivery is the place of the supplying plant. Place of performance for payment is Glückstadt. The law of the Federal Republic of Germany is exclusively applicable. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. Place of jurisdiction for both parties is Glückstadt. In addition the Seller shall be entitled to choose the place where the Buyer has its registered office as place of jurisdiction. 

 

14. Inclusion of the General Terms and Conditions of the German Paper Factories Association and of the Paper and Board Manufacturers of the EC

Unless otherwise stipulated above, the General Terms and Conditions of Sale (AVB) for graphic paper and graphic cardboard for printed purposes edited by the German Paper Factories Association (as of January 1984, published in the German Federal Gazette on 19/05/1983 and 26/01/1984) VDP and the General Terms and Conditions of Sale (AVB) of the Paper and Board Manufacturers of the European Confederation of Pulp, Paper and Board Industries (as of 1991), CEPAC, apply.  

 

15. Severability Clause and applicable version of standard terms

Should any provision for any reason partly or in whole be or become void or legally invalid, the validity of the remaining agreements remains unaffected. The Buyer and the Seller agree that an ineffective agreement shall as far as possible be substituted by an effective agreement that equals its economic success. The same applies if the parties forgot to include an agreement.

In case of differences in construction the German version of these terms and conditions prevails. The English version has merely been established for convenience reasons. 

 

© 2009 Steinbeis Papier Glückstadt GmbH & Co. KG