General terms and conditions of sale of KartonImex Intercell GmbH

§ 1 General, scope

  1. These General Terms and Conditions of Sale (GTCS) apply to all business relationships with our customers (the “buyer”). The GTCS only apply if the buyer is an entrepreneur (§ 14 of the German Civil Code (BGB)), a legal person under public law or a special asset under public law.
  2. The GTCS apply in particular to contracts concerning the sale and/or delivery of movable assets (“goods”), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 of the German Civil Code (BGB)). Unless otherwise is agreed, the GTCS apply in the version last communicated to the buyer in writing at the time the order is placed by the buyer; they also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
  3. Our GTCS apply exclusively. Differing, conflicting or supplementary General Terms and Conditions of the buyer only become a part of the contract if we have expressly approved their validity. This requirement for approval applies in every case, for example even if we are aware of the buyer’s GTC and make the delivery to the buyer unconditionally.
  4. Individual agreements made with the buyer on an individual basis (including additional agreements, amendments and changes) take precedence over these GTCS. For the content of such agreements, subject to evidence to the contrary, a contract in writing or our written confirmation is authoritative.
  5. Declarations and notifications which are relevant in law and which have to be made to us by the buyer after the contract has been concluded (e.g. deadlines, notification of defects, withdrawal or reduction in price) are required in writing to become effective.
  6. Any reference to the validity of statutory regulations is only for clarification purposes. The statutory regulations therefore still apply without such clarification, unless they have been directly modified or expressly excluded in these GTCS.
 

§ 2 Conclusion of contract

  1. Our offers are without obligation and non-binding.
  2. The order of goods by the buyer is considered to be a binding contract offer. Unless otherwise is stated in the order, we have the right to accept this contract offer within one week of its receipt.
  3. The acceptance can be declared either in writing (e.g. by contract confirmation) or by delivery of the goods to the buyer.

 

§ 3 Delivery time and default of delivery

  1. The delivery deadline is agreed individually or is specified by us upon receipt of the order. If this is not the case, the delivery deadline is 2 weeks after the conclusion of the contract.
  2. If we are not able to meet binding delivery deadlines (non-availability of service) due to reasons for which we are not responsible, we will inform the buyer of this without delay and at the same time advise of the likely new delivery deadline. If the performance does not take place by the new delivery deadline, we are entitled to withdraw wholly or in part from the contract; we will refund a counter-performance which has already been made by the buyer without delay. It is considered to be a case of non-availability of service in this sense in particular if our supplier does not deliver to ourselves on time and if we have concluded a congruent covering transaction, neither us nor our supplier is at fault, or we are under no obligation to source in the given case.
  3. The statutory regulations will determine whether we are in default of delivery. In each case though a reminder is required from the buyer. If we are in default of delivery, the buyer may demand compensation at a flat-rate for the losses it has incurred due to late delivery. The flat-rate compensation is for each full calendar week of default 0.5% of the net price (delivery value), thought in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that no damage has been caused to the buyer or that the damage was only of a significantly lower amount than the above flat rate.
  4. We have the right to refuse to deliver to the buyer so long as the buyer has outstanding debts with us. So long as this is the case, we will not be in default of delivery.
  5. The rights of the buyer under § 9 of these GTCS and our statutory rights, in particular when there is no duty to perform (e.g. when it is impossible or unreasonable to provide the service and/or supplementary performance), remain unaffected.
  6. Notwithstanding other provisions in these GTCS, if a ship chartered in accordance with these terms and conditions reaches the port of loading up to 21 days after the contractually-stipulated shipping date through not fault of our own, this will not give the buyer the right to refuse the consignment or refuse acceptance of the delivery or demand any other compensation for damages.

 

§ 4 Delivery, transfer of risk, acceptance and default of acceptance

  1. Unless otherwise is agreed, the delivery will be made ex warehouse, which is also the place of fulfilment for the delivery and any supplementary performance. At the request and cost of the buyer the goods will be sent to another destination (sales shipment). Unless otherwise is agreed, we are entitled to determine ourselves the nature of the shipment (in particular the transport company, the shipment route and the packaging).
  2. The risk of accidental loss or deterioration of the goods is transferred at the latest upon hand-over to the buyer. With purchases involving delivery, however, the risk of accidental loss or deterioration of the goods and the risk of delay are transferred with the delivery of the goods to the shipper, the freight forwarder or other person or institution appointed to perform the shipment. If acceptance of the goods is agreed, this is authoritative for the transfer of risk. In addition the statutory regulations of “Werkvertragsrecht” (the law governing contracts for work and services) apply when acceptance is agreed. The transfer or acceptance will also be deemed to have taken place if the buyer is in default of acceptance.
  3. If the buyer is in default of acceptance, fails to cooperate or a delivery is delayed due to other reasons for which the buyer is responsible, we are entitled to demand compensation for the damage incurred due to this including additional expenditure (e.g. storage costs). We will charge for this compensation at a flat rate of 1% of the net order value per calendar day, starting with the delivery deadline, and if there is no delivery deadline, with the notification that the goods are ready for despatch. The right to prove that the losses are higher and our statutory rights (in particular reimbursement of additional expenses, adequate compensation, terminate) remain unaffected; the flat rate will though be offset against further monetary claims. The buyer is granted the right to prove that no damage has been caused to us or that the damage was only of a significantly lower amount than the above flat rate.

 

§ 5 Contract quantity: weight and moisture (only applies for chemical pulp and mechanical pulp)

  1. One tonne in the sense of this contract is 1000 kg of air dry goods. What is understood by the term “air dry” is goods that consist of 90 % dry chemical pulp and 10 % water.
  2. The pulp is to be packed in bales or rolls that are either of standard weight and standard dry content or carry precise information concerning the weight, dry content and the number of each bale. Each bale has to have a number or another label to allow the seller and buyer to establish the time of production if required.
  3. In order to make the goods easier to ship, the weight may deviate from the contract quantity by a margin of 10 % up or down. If at least two deliveries are made under the same contract, the margin of the total contract quantity may not exceed 10 % of the quantity delivered with the last load required to fulfil the contract.

 

§ 6 Prices and payment terms

  1. Unless otherwise has been agreed on an individual basis, our current prices at the time the contract was concluded apply; these prices are ex warehouse, plus statutory VAT.
  2. With purchases involving delivery (§ 4 para. 1) the buyer bears the ex warehouse transport costs and where applicable the costs of any transport insurance required by the buyer. If we do not invoice the actual transport costs incurred in a given case, a flat-rate transport cost (not including transport insurance) in the amount of 10% of the net order value will be deemed to have been agreed. Any fees, taxes and other public charges are borne by the buyer.
  3. The purchase price is due and to be paid within 14 days of the invoice being issued and delivery or acceptance of the goods. We have the right though, including in an ongoing business relationship, to make a delivery at any time in whole or in part only on advance payment. We will declare any such reservation at the latest with the confirmation of the order.
  4. The purchase price is due and to be paid within 14 days of the invoice being issued and delivery or acceptance of the goods. We have the right though, including in an ongoing business relationship, to make a delivery at any time in whole or in part only on advance payment. We will declare any such reservation at the latest with the confirmation of the order.
  5. The buyer will only have offsetting or retention rights if its claim is determined to be legally binding or is undisputed. In the event of any defects in the delivery, the counter-rights of the buyer as defined in § 8 para. 6 clause 2 of these GTCS will remain unaffected.
  6. If it is evident that our claim on the purchase price is threatened by the buyer’s lack of ability to perform (e.g. due to an application to open insolvency proceedings), we will have the right in accordance with the statutory regulations to refuse performance and, where applicable after a deadline has been set, to withdraw from the contract (§ 321 of the German Civil Code (BGB)). With contracts concerning the manufacture of non-fungibles (one-off productions), we can declare withdrawal immediately; the statutory regulations with regard to any setting of a deadline being unnecessary remain unaffected.

 

§ 7 Retention of title

  1. We retain the title to the goods delivered by us until full payment of the purchase price of the respective delivered goods.
  2. The goods subject to retention of title are not allowed to be pledged to third parties or transferred for security before full payment of the secured claims. The buyer has to inform us without delay in writing if an application to open insolvency proceedings has been made or if third parties have access to the goods belonging to us (e.g. seizure).
  3. In the event of a breach of the contract by the buyer, in particular in the event of the non-payment of the purchase price due, we will have the right to withdraw from the contract in accordance with the statutory regulations and/or demand the return of the goods that are subject to retention of title. The demand of the return of the goods does not constitute a declaration of withdrawal; we are rather entitled to simply demand the return of the goods and reserve the right to withdraw. If the buyer does not pay the purchase price due, we may only assert these rights if we have unsuccessfully set the buyer an appropriate deadline for payment beforehand or the setting of such a deadline is unnecessary in accordance with the statutory regulations.
  4. The buyer has the right to resell and/or process the goods which are subject to retention of title in the normal course of business until this right is revoked in accordance with (c) below. In this case the following provisions also apply:
    1. The retention of title covers the products produced by processing, mixing or combining our goods to their full value, whereby we are considered to be the manufacturer. If in processing, mixing or combining with a third party’s goods the third party has retention of title, then we acquire joint ownership in proportion to the invoice value of the processed, mixed or combined goods. For the rest the same applies for the products produced as for the delivered goods which are subject to retention of title.
    2. The buyer assigns to us now the claims against third parties arising from the resale of the goods or the products in total or in the amount of any joint share of ownership in accordance with the above paragraph as security for the respective claim. We accept this assignment. The buyer’s duties specified under paragraph 2 also apply in consideration of the assigned claims.
    3. The buyer remains authorised to collect the claim as well as ourselves. We undertake not to collect the claim so long as the buyer meets its payment obligations towards us, there is no other shortcoming in its performance and we have not claimed retention of title by exercising any right under para. 3. However, if this is the case, we may demand that the buyer informs us of the assigned claims and the debtors, provides all of the details required for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case we also have the right to revoke the buyer’s authorisation to resell and process the goods subject to retention of title, to disclose the assignment to the assignment to the respective third-party buyers and to collect the assigned claims ourselves.
    4. If the realisable value of the securities exceeds our claims by more than 10%, we will upon the request of the buyer release securities of our choice.
  5. If the parties have claims against each other and if an application to open insolvency proceedings against one of the parties is made, the other party will have the right to declare that it will offset its claim against the claim of the party that is the subject of the insolvency proceedings, even if the claim to be offset is not yet due.
  6. If we demand from the buyer the return of items that are our property, the buyer will not have the right to exercise any right of retention in respect of this right to recover possession.

 

§ 8 Claims for defects by the buyer

    1. The statutory regulations apply for the rights of the buyer with liability for material defects and defects of title (including wrong and short delivery, incorrect assembly or faulty assembly instructions), unless otherwise is specified in the following. In all cases, the special statutory regulations for final delivery of the goods to a consumer remain unaffected (supplier regress in accordance with §§ 478, 479 of the German Civil Code (BGB)).
    2. Our liability for defects is based above all on the agreed properties of the goods. The agreement concerning the properties of the goods is considered to be all product descriptions which are the object of the individual contract; it makes no difference whether the product description comes from the buyer, from the manufacturer or from us.
    3. If the properties have not been agreed, it is to be assessed in accordance with the statutory regulation whether there is a defect or not (§ 434 para. 1 clauses 2 and 3 of the BGB). We accept no responsibility though for public statements made by the manufacturer or other third party (e.g. advertising messages).
    4. For the buyer to be able to make claims for defects, it is necessary that it has met its legal duties of inspection and notification (§§ 377, 381 of the German Commercial Code (HGB)). If a defect is revealed in the inspection or at a later time, we have to be notified in writing without delay with the roll or bale number concerned stated. The notification will be deemed to have been made without delay if it is made within two weeks, whereby the deadline will be deemed to have been met if the notification has been sent in due time. Notwithstanding this duty of inspection and notification, the buyer has to notify obvious defects (including wrong and short delivery) in writing within two weeks of delivery, whereby the deadline will be deemed to have been met if the notification has been sent in due time. If the buyer fails to duly inspect the delivery and/or notify of defects, our liability for the defects that have not been notified is excluded. Our liability will be excluded in particular if the buyer processes the goods without duly inspecting them beforehand and/or duly notifying the defects beforehand, unless the defect is a hidden defect.
    5. If the delivered object has a defect, we can in the first instance choose whether we carry out the supplementary performance by rectifying the defect (rectification) or by supplying a defect-free item (replacement delivery). Our right to refuse supplementary performance under statutory law remains unaffected.
    6. We have the right to make the supplementary performance owed dependent upon whether the buyer pays the purchase price due. However, the buyer has the right to retain an appropriate part of the purchase price which is in proportion to the defect.
    7. The buyer has to give us the time required and opportunity to provide the supplementary performance owed. In particular the buyer has to hand over to us the goods which are the subject of the complaint for examination purposes; the buyer has a duty to take all reasonable actions that are necessary or appropriate to ensure that the goods which are the subject of the complaint are handed over as quickly as possible to us for the purpose of supplementary performance. In the case of a replacement delivery the buyer has to return the defective object in accordance with the statutory regulations. Supplementary performance includes neither the removal of the defective item nor its reinstallation, if we were not originally required to perform the installation.
    8. The necessary costs of examination and supplementary performance, in particular the costs of transport, labour and materials (not the costs of removal and installation), will be borne by ourselves, if a defect actually exists. Otherwise we may demand from the buyer compensation for the costs incurred as a result of the unjustified request for rectification of defects (in particular inspection and transport costs), unless the absence of a defect was not recognisable for the buyer.
    9. In urgent cases, e.g. a risk to operational safety or in order to prevent disproportionately high losses, the buyer will have the right to rectify the defect itself and to demand compensation for the costs incurred from us. We are to be informed immediately, where possible in advance, of any such rectification by the buyer itself. The buyer will not have the right to rectify the goods itself if we would be justified in refusing any such supplementary performance in accordance with the statutory regulations.
    10. If the supplementary performance has failed, or a reasonable deadline set by the buyer for the supplementary performance has expired without success, or a deadline is not necessary in accordance with the statutory regulations, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right to withdraw for a minor defect.
    11. Claims by the buyer for compensation or reimbursement for wasted expenditure are only possible, including if there are defects, in accordance with § 9 and for the rest are excluded.

 

§ 9 Other liability

  1. Unless otherwise is stated in these GTCS including the provisions below, we are liable for a breach of contractual and non-contractual duties in accordance with the statutory regulations.
  2. We are liable for compensation, for whatever legal reason, within the scope of liability based on fault, for wilful intent and gross negligence. In the case of ordinary negligence we are only liable as provided in a more mild criterion for liability in accordance with statutory regulations (e.g. for the care exercised in managing our own affairs)
    1. for damages due to injury to life, limb or health,
    2. for damages due to the not insignificant breach of a material contractual obligation (an obligation whose fulfilment enables the contract to be duly performed at all and which the contract partner may trust is adhered to); in this case our liability though is limited to compensation for foreseeable, typically occurring damage.
  3. The limitations of liability defined in para. 2 also apply in the event of breaches of duties by or on behalf of persons whose fault we are responsible for under statutory regulations. They do not apply if we have fraudulently concealed a defect or accepted a guarantee for the quality of the goods. They also do not apply for claims by the buyer under the German Product Liability Act (Produkthaftungsgesetz).
  4. The buyer can only withdraw or cancel due to a breach of duty which is not a defect, if we are responsible for the breach of duty. Any free right of cancellation of the buyer is excluded (in particular in accordance with §§ 651, 649 of the German Civil Code (BGB)). For the rest the statutory requirements and consequences apply.

§ 10 Limitation period

  1. In deviation to § 438 para. 1 no. 3 German Civil Code (BGB), the general limitation period for claims due to liability for defects in quality and in title is one year from delivery. If acceptance is agreed, the limitation period starts from the acceptance. The statutory limitation period in the cases of § 438 para. 1 no. 2 of the German Civil Code (BGB) remain unaffected. The same applies for other special statutory regulations relating to the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 of the German Civil Code (BGB)).
  2. The above limitation periods of Sales Law (Kaufrecht) also apply for contractual and non-contractual claims for compensation by the buyer that are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in a given case. Claims for compensation by the buyer in accordance with § 9 para. 2 clause 1 and clause 2(a) and under the German Product Liability Act (Produkthaftungsgesetz) will only become time-barred, however, based on the statutory limitation periods.

 

§ 11 Choice of law and place of jurisdiction

  1. For these GTCS and the contractual relationship between us and the buyer, the law of the Federal Republic of Germany applies to the exclusion of international uniform law, and in particular the UN Convention on Contracts for the International Sale of Goods.
  2. If the seller is an entrepreneur as defined by the German Commercial Code, a legal person under public law or a special asset under public law, the exclusive, also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the location of our registered office in Düsseldorf. The same applies if the buyer is an entrepreneur as defined by § 14 of the German Civil Code (BGB). However, we will also have the right in call cases to take legal action at the place of fulfilment for the delivery obligation in accordance with these GTCS or in accordance with an overriding individual agreement, or at the general place of jurisdiction of the buyer. Overriding statutory regulations, in particular those relating to exclusive jurisdiction, remain unaffected.

 

§ 12 Priority given to the German version

In the event of any differences between the English version and the German version of the GTCS, priority will be given to the German version. The same will apply if there is a contradiction between the English version and the German version of the GTCS.