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Standard Terms and Conditions

Last updated: August 17, 2020

1. General

Unless otherwise specified below, sales are made pursuant to the General Terms and Conditions of Sale of the Pulp and Paper Manufacturers of the EC, Brussels, as issued by the European Confederation of Pulp, Paper and Board Industries (last updated 1991), CEPAC.

2. Scope of application

2.1 The following terms and conditions apply to all agreements for the delivery of products in commercial operations by our company (hereinafter “Seller”) to our customers (hereinafter “Purchaser”), to the extent they are entrepreneurs as defined in section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).

2.2 These terms and conditions shall apply exclusively. Derogating, conflicting or supplementary standard terms and conditions of the Purchaser shall only become part of the agreement if and to the extent that the Seller has expressly consented to their application in writing. This shall also apply if the Seller makes delivery to the Purchaser without reservation in full knowledge of the Purchaser’s general terms and conditions.

2.3 These terms and conditions shall be deemed accepted at the latest upon acceptance of performance by the Purchaser. The General Terms and Conditions also apply to all future transactions with the Purchaser, even if the Seller does not make exclusive reference to them.

3. Formation of contract

3.1 All offers made by the Seller are non-binding. An order placed by the Purchaser constitutes a binding offer to the Seller to enter into an agreement. Purchase agreements are only formed when the Seller issues a written order confirmation and solely on the basis of these General Terms and Conditions.

3.2 If the Purchaser orders the product electronically, the Seller shall confirm receipt of the order without undue delay. However, the confirmation of receipt does not constitute binding acceptance of the order. Confirmation of acceptance is generally issued separately, however in individual cases may also be combined with the confirmation of receipt.

4. Shipping and delivery

4.1 Where delivery is made within Germany, the transfer of risk is governed by the statutory provisions. Deliveries to a location of the Purchaser outside Germany shall be made “ex works” (“EXW”) in accordance with Incoterms 2020.

4.2 If the goods are held at the Seller’s warehouse for the exclusive disposal of the Purchaser or are sold for manufacture without specifying shipping, the Purchaser must collect the goods within two weeks of notification that they are ready.

4.3 Unless otherwise agreed, the Seller may determine the route and method of shipping at its discretion. The Seller assumes no liability for any lower-cost or quicker means of shipping. Collection by the Purchaser requires the prior written consent of the Seller.

5. Dates of delivery and performance

5.1 The delivery time begins on the date of order confirmation and ends on the day on which the purchased article is received at the location specified by the Purchaser in accordance with annex 1 to the purchase agreement. If the Seller amends the order after receiving the confirmation of receipt or confirmation of acceptance and such amendment affects the production lead time, the delivery time does not begin until confirmation of the amendment.

5.2 The Purchaser shall confirm receipt of the goods by signing the delivery note.

5.3 The parties may agree to partial deliveries and part payments based on such partial deliveries.

6. Interruptions in delivery caused by force majeure

6.1 The Seller’s obligation to deliver is suspended to the extent that, in view of the totality of the circumstances, the purchased item cannot reasonably be delivered due to force majeure or similar events. Force majeure is an external event without any apparent connection to the business, which is unable to be averted even through the exercise of the highest level of care that may reasonably be expected. An event of force majeure shall be deemed to have occurred in particular in the case of war, epidemics and pandemics, trade blockades, embargoes and shortages of raw materials. A similar event shall be deemed to be any circumstance that is outside the sphere of control of the party concerned and that cannot be averted or foreseen despite that party exercising the highest level of care that may reasonably be expected. Such event shall be deemed to have occurred in particular if, in accordance with the statutory provisions, upstream suppliers are fully or partly released from their delivery obligation, in the case of substantial price increases for such deliveries, and in the case of industrial action and other interruptions or disruptions to business for which the party concerned is not responsible.

6.2 If it is impossible or unreasonably difficult to deliver the purchased item due to force majeure or a similar event for a period of at least 120 consecutive days, the Seller and the Purchaser may rescind the agreement in whole or in part.

6.3 If it is only temporarily impossible or unreasonably difficult to deliver the purchased item due to events of the type specified in clause 6.1, the delivery obligations shall be suspended for the period for which the impediment to performance exists. In such case, the Purchaser is not authorized to rescind the agreement unless the delay to delivery makes it unreasonable for it to continue performing the agreement.

6.4 Claims for damages due to non-performance or delayed delivery are excluded to the extent that the non-performance or delayed delivery are caused by force majeure or similar events.

6.5 The Seller and the Purchaser shall notify each other without undue delay of the occurrence of force majeure or a similar event, giving the specific grounds and stating the extent to which this will affect performance of the agreement.

7. Payment

7.1 The written agreements made by the parties shall apply. The payment term begins to run on the invoice date.

7.2 Unless otherwise agreed, invoices shall be due and payable in full within 30 days of the invoice date.

7.3 In the case of multiple claims for payment, the Seller may set off payments made by the Purchaser against its claims for payment in the order in which they became due and payable. In this respect, the right of determination (Bestimmungsrecht) pursuant to section 366 (1) BGB is excluded.

7.4 If due and payable invoice amounts, including ancillary payment claims, are not settled in full, the Seller shall have no further obligation to make delivery under ongoing contractual relationships. The foregoing shall not affect the Seller’s rights under sections 281 and 323 BGB.

8. Default

8.1 If the Purchaser defaults on acceptance, the Seller may claim compensation for the additional expense incurred. After 30 days have elapsed since the dates of delivery and performance referred to in clause 5, the Seller reserves the right to fully invoice the ordered quantities and charge the Purchaser standard local warehousing fees for storage from that date onwards.

8.2 If the Purchaser defaults on payment or acceptance despite a 14 day grace period being set, the Seller may in addition to default interest and interest on late payments claim damages for non-performance and/or withdraw from the agreement in whole or in part.

8.3 The Seller has the right to request the acceptance of quantities in respect of which the Purchaser has defaulted on acceptance, but is not required to perform further parts of the order. The foregoing shall also apply if the Purchaser defaults on acceptance with respect to just one of multiple individual orders.

9. Set-off/withholding of performance/assignment

9.1 The Purchaser may only exercise a right of set-off or right to withhold performance on the basis of claims that are uncontested or have been declared final and binding by a court of law.

9.2 The Seller may assign its claims under the business relationship with the Purchaser. The Purchaser’s rights hereunder are non-transferable.

10. Trade credit insurance/Seller's right of rescission

10.1 The Seller shall notify the Purchaser of the conclusion of a trade credit insurance policy to cover the delivery. The Seller shall also notify the Purchaser if suitable insurance cover cannot be obtained or cannot be obtained in a sufficient amount.

10.2 The Purchaser is aware that the Seller takes out trade credit insurance to cover bad debts arising from the contractual delivery of goods. The Purchaser shall at its own initiative and cost provide the Seller the requisite commercial information necessary to obtain insurance cover commensurate to the value of the delivery. All agreements for the delivery of products to the Purchaser shall be subject to the condition precedent that appropriate insurance cover is obtained.

10.3 If no (appropriate) insurance cover can be obtained, the Seller may rescind the agreement. Within seven days of the Seller’s notification that appropriate insurance cover could not be obtained (in a sufficient amount), the Purchaser may offer a different form of payment security that provides the same level of collateral for the Seller as an appropriate trade credit insurance policy. In this case the Seller is not authorized to rescind the agreement.

11. Retention of title

11.1 The Seller shall retain title in the product until full payment of the purchase price.

11.2 If the Purchaser fails to comply with its obligation despite a warning, the Seller may demand the return of the product from the Purchaser without setting a grace period or declaring rescission. The demand for return shall not simultaneously contain a declaration of rescission. The transport costs incurred to return the product shall be borne by the Purchaser.

11.3 The Purchaser may not pledge of assign the product as collateral.

11.4 The Purchaser hereby assigns to the Seller all claims arising from resale of the processed or unprocessed products up to the value of the product subject to retention of title. At the request of the Seller, the Purchaser shall inform its customer of this assignment. The Seller accepts the assignment.

11.5 The Purchaser may process or resell the product in the ordinary course of business. In such case, the retention of title extends to the new items arising due to processing, mixing or combining the product, with the Seller deemed to be the manufacturer. If other items not belonging to the Purchaser are processed together with the product to form a new object, the Seller shall acquire a co-ownership interest in the new object in proportion to the value of the product covered by the retention of title.

11.6 The Purchaser shall insure the product against loss and damage. Proof of insurance shall be furnished at the request of the Seller. Furthermore, the Purchaser shall notify the Seller without undue delay of all actions taken by third parties that conflict with the Seller’s retention of title (e.g., pledge).

12. Examination of the goods/notice of defects

12.1 The Purchaser shall examine the product after delivery or collection in accordance with section 377 of the German Commercial Code (Handeslgesetzbuch – HGB ). The Seller shall be notified without undue delay in writing of any defects discovered. In the case of a justified notice of defect, the Seller shall at the choice of the Purchaser effect either repair or replacement (cure). If this is unsuccessful, the Purchaser may at its choice reduce the remuneration due (reduction) or rescind the agreement (rescission). However, the right of rescission is excluded if the defect is only non-material.

12.2 If such a defect is discovered at a later date (latent defect), the notice must be made without undue delay following discovery. Otherwise, the goods shall be deemed accepted, including in consideration of the defect.

12.3 Notices of defect must be recorded in writing by the Purchaser. The notice of defect must be accompanied by detailed photographic evidence of the parts of the delivery to which it relates and at least one overall image of the given delivery including the delivery vehicle license plates. The notice of defect must furthermore be accompanied by supporting documents, processed material, finished parts and other items suitable as evidence of the defect notified, and must be sent to the Seller or otherwise made available to it on request.

12.4 Claims for defects shall be time-barred after one year. The limitation period begins on the date of delivery or collection of the goods. A one-year warranty period subject to these terms and conditions also applies in the case of curing performance. The foregoing shall not affect the limitation period for all other parts of the purchased item not subject to cure.

13. Deviations: weight and measurement tolerances

Deviations between the goods ordered and those delivered are determined after delivery of the order or part of the order subject to the same delivery period and relating to the same quality and format. The industry standard tolerances shall apply in accordance with clauses 12 et seq. of the General Terms and Conditions of Sale of the Pulp and Paper Manufacturers of the EC, Brussels (see clause 1).

14. Limitation of liability

14.1 For damages claims of all types, the Seller’s liability is unlimited for willful and grossly negligent conduct.

14.2 The Seller’s liability for ordinary negligence (except in cases of loss of life, bodily injury or injury to health) is limited to the breach of a material contractual obligation (obligation that is essential to the due and proper execution of the agreement and on the performance of which the Purchaser generally relies and is entitled to rely). Liability is limited to reasonably foreseeable loss or damage that is characteristic for the type of contract.

14.3 Any further liability shall – irrespective of the legal nature of the claims asserted – be excluded. The foregoing limitations and exclusions of liability shall not apply if liability arises regardless of fault pursuant to statutory strict liability provisions (e.g., pursuant to the German Product Liability Act (Produkthaftungsgesetz)) or liability arises regardless of fault from a guarantee.

14.4 The foregoing limitations of liability also apply to breaches of duty by or for the benefit of individuals whose fault is attributable to the Seller in accordance with statutory provisions. They shall not apply if the Seller fraudulently concealed a defect.

15. Place of performance

The place of performance for both parts is the location specified by the Purchaser in its order, in accordance with annex 1 to the supply agreement.