General Conditions

for the Sale, Supply and Services of Papierfabrik Julius Schulte Söhne GmbH & Co. KG

I. Application of these General Conditions

  1. The supplies, services and offers of Papierfabrik Julius Schulte Söhne GmbH & Co. KG (hereinafter referred to as “JULIUS SCHULTE“) shall be solely governed by the present General Conditions, unless agreed upon otherwise in writing. Any terms and conditions of the Buyer which conflict with or deviate from these General Conditions are hereby explicitly rejected.
  2. These General Conditions shall only apply in relation to entrepreneurs pursuant to §§ 310 Sec. 1, 14 German Civil Code (entrepreneurs, legal entities of public law and special funds governed by public law.

II. Offer/Conclusion of Contract

  1. The offers of JULIUS SCHULTE are subject to change and non-binding, unless they have been explicitly stated to be a binding offer. A contract shall be deemed as concluded only upon written confirmation.
  2. Unless explicitly stated otherwise, JULIUS SCHULTE considers itself bound to the conditions of a binding or fixed offer for the duration of 14 days since the date of its issue.
  3. Information regarding the subject and scope of the supply (e.g. mass, weights, technical data) in catalogues, handouts or other descriptions (e.g. data sheets in its current version for the time being) shall be approximately decisive only, unless it has explicitly agreed upon in writing that those information shall be regarded as forming an integral part of the contract and as binding.
  4. Guarantees for the condition of goods or its characteristics shall only be granted by JULIUS SCHULTE if those guarantees were expressly stated by JULIUS SCHULTE in writing.
  5. The field workers, employees, commercial agents and other staff members of JULIUS SCHULTE are not entitled to conclude oral ancillary agreements or to give oral assurances or assertions that exceed the content of the written contract.
  6. JULIUS SCHULTE reserves all rights with respect to copyright and ownership right on offer documents, drawings, descriptions, samples and cost estimates. Those may not be transferred, disclosed, reproduced or otherwise made accessible to third parties without the express consent of JULIUS SCHULTE. Upon request of JULIUS SCHULTE all documents and data carriers are to be returned, whereby no copies thereof may be retained.

III. Deliveries/Dates of Delivery/Delay in Delivery

  1. In the absence of agreements to the contrary, our supplies are understood “ex works“ (EXW) pursuant to the INCOTERMS in its current version.
  2. Unless explicitly referred to as binding, all delivery deadlines and dates stated by JULIUS SCHULTE are non-binding.
  3. Delays in delivery or services due to force majeure and due to events that substantially impede or make impossible JULIUS SCHULTE’s deliveries – including in particular natural disaster, strike, lockout, official directives directly relating to the manufacturing or supply, shortage of raw material, unpreventable operational interruptions etc., also if they occur with our suppliers or their sub-suppliers - and which are beyond JULIUS SCHULTE’s control, shall entitle JULIUS SCHULTE to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract with regard to the part which has not yet been performed. JULIUS SCHULTE may only refer to the circumstances named if it has immediately informed the Buyer of its occurrence accordingly.
  4. If the hindrance lasts longer than 2 months, the Buyer has the right to cancel the contract with regard to the not yet fulfilled part.
  5. If the delivery period is extended according to sec. 4 or if JULIUS SCHULTE is freed from the obligation to fulfil the contract, the Buyer cannot assume any rights to claim damages.
  6. Should JULIUS SCHULTE not comply with the agreed delivery term or delivery date, the Buyer shall be entitled to withdraw from the contract following the fruitless expiry of a reasonable period of grace.
  7. Claims for compensation of delay-related damages can be made if non-compliance with the delivery term is due to intent or gross negligence. In case of simple negligence the claims for delay-related damages are limited to 5 percent of the purchase price for the delivered goods.
  8. JULIUS SCHULTE may make partial deliveries and provide partial services, as far as the partial delivery or service is reasonable for the Buyer and he obviously has no interest not to receive partial deliveries or services.
  9. JULIUS SCHULTE’s compliance with the agreed delivery or service obligation requires the timely and proper fulfilment of all the Buyer’s obligations.
  10. If the buyer fails to accept the goods or services in due time, JULIUS SCHULTE will be entitled to claim a compensation for the damage incurred to it. JULIUS SCHULTE is then entitled to store the goods at the Buyer's expense and demand appropriate storage costs, also in case that the goods are stored in its own warehouse. The risk of accidental deterioration or destruction shall pass to the Buyer as soon as he is in arrears with his acceptance.
  11. In case that the pallets of JULIUS SCHULTE are used for the transport, the Buyer shall be obliged to replace such pallets by pallets of the same quality and number from his own holdings. Otherwise, the Buyer shall be obliged to pay the damages.

IV. Transfer of Risk

In case of delivery “ex works” the risk shall pass to the Buyer from the moment the goods are handed over to the person carrying out the transportation or have left the store of JULIUS SCHULTE for dispatch. If the dispatch is delayed or not executed on the Buyer's request or fault, the risk shall pass to the Buyer when readiness for dispatch is notified.

V. Prices

  1. Unless agreed upon otherwise, the prices indicated apply ex works (frontier duty unpaid) in Euro including loading in the works; however, excluding packaging plus the legally applicable value-added tax.
  2. If there are more than four months between the conclusion of the contract and the delivery date and provided that JULIUS SCHULTE is not responsible for this, JULIUS SCHULTE shall be entitled to make a price adjustment, provided that there was an increase of the own costs by more than 5%, especially due to increases of the prices for material or the costs for transport or due to increases of wages. In case of a price increase by more than 10% the Buyer shall be entitled to withdraw from the contract. This shall not apply if there was explicitly agreed upon a fixed price for a certain period of time.
  3. If part payments or payments in instalments are agreed upon, then the entire outstanding amount of the debt shall become immediately due for payment in the event that the Buyer is in default with a due payment for more than 10 days.
  4. If after conclusion of the contract public charges and taxes should be increased or newly introduced (e.g. duties; charges for import and export) JULIUS SCHULTE shall be entitled to add such additional expenses to the price.

VI. Warranty

  1. Claims on the grounds of defects are excluded in case of only insignificant deviation from the agreed characteristics of the goods or only insignificant impairment of the usability.
  2. Unless explicitly agreed upon deviations or unless special tolerances are stated on the product data sheets, Art 12 to 20 of General Conditions of Sale of Paper and Board Manufacturers in EEC, recommended by the European Confederation of Pulp, Paper and Board Industries (CEPAC) in its version dated 1991 or in the later announced actual version, that are available for viewing at JULIUS SCHULTE, shall apply with regard to tolerances in quantities, measurements, thickness, squareness, surface weight and counting accuracy etc. of paper and board and with regard to other characteristics and test specifications. Exempted from this is the examination of the splitting strength. For the examination of the splitting strength the applicable testing standard shall apply. The measurements ascertained by JULIUS SCHULTE are the basis for assessment.
  3. In any case deviations in weight and measurements within the limits set by customary tolerances and relevant DIN regulations shall be admissible. Beside that JULIUS SCHULTE reserves the right to make alterations in measurements and weights in the course of technical development and of the works for engineering standards and the manufacturing facilities, so far as the change in weight and in measurements will not impede the usability as agreed upon within the contract.
  4. The delivered weights and unit quantities ascertained by JULIUS SCHULTE are decisive for the calculation.
  5. Damages of the first five layers of each paper roll due to the transport shall not be regarded as a defect which entitles the Buyer to claim damages.
  6. JULIUS SCHULTE reserves the right to deliver a better quality than agreed upon, but without constituting a claim of the Buyer for a continuous delivery of the better quality.
  7. Claims of defects must be asserted within one year from the beginning of the start of the statutory limitation period for claims. That time limit shall not apply if longer periods are mandatory according to law, especially for indemnification claims (§ 479 Sec. 1 German Civil Code) or in cases of intent, fraudulent concealment of a defect or non-compliance with a given guarantee for characteristics. The statutory provisions for suspension of expiration (Ablaufhemmung), suspension (Hemmung) and recommencement of limitation periods remain unaffected.
  8. When delivered the goods are to be quality controlled by the Buyer pursuant to § 377 Commercial Code.
  9. In case of detected defects JULIUS SCHULTE shall be notified as follows:
  10. immediately after their discovery, at latest however within one week after receiving of the delivered goods in case of damages in transit and in case of apparent defects with regard to quality/grade, quantities or agreed characteristics; externally visible defects shall be notified and recorded in the transportation documents, if such are existing, in a suitable manner in order to narrow the date on which the damage arose.
  11. immediately after their discovery, at latest however within two weeks after receiving of the delivered goods in case of damages, which may be detected by cursory examination or random testing,
  12. any other hidden defects immediately after their discovery.
  13. The failing to observe these provisions will lead to the forfeiture of damage claims.
  14. Defective goods shall be reworked or replaced at JULIUS SCHULTE’s discretion. If JULIUS SCHULTE fails to rework or replace the defective goods within a reasonable period of time or in case the replaced or reworked goods are also defective, the Buyer shall have the right to demand reduction in price or the cancellation of the contract.
  15. Deficiencies on a part of the delivered goods do not entitle the Buyer to reject the entire contract.
  16. Claims of the Buyer with regard to expenses necessary for the purpose of the subsequent fulfilment (replacement, rework), in particular transport, travel, work and material costs are excluded in so far as the expenditure increases because the item delivered has retrospectively been taken to a location other than the Buyer’s branch, unless this relocation is in line with the intended use.
  17. If a sample, a model or a delivered batch of goods has a special characteristic that is decisive for the intended use for the Buyer or its customers in such a kind that the (following) order is made especially because of this characteristic, then the Buyer shall be obliged to indicate to JULIUS SCHULTE this fact and the special characteristic required. Should no indication of this fact will be given and should the delivered goods be without the special characteristic on passing of risk, JULIUS SCHULTE may not be held liable.
  18. Should a good of JULIUS SCHULTE which is already in use of the Buyer be used for a new application, this has to be tested by the Buyer prior the new intended use. The failure to make those tests shall lead to the exclusion of the warranty.

VII. Retention of Title

  1. The delivered goods shall remain the property of JULIUS SCHULTE until complete fulfilment of each and every claim (including all claims on current account balances) which JULIUS SCHULTE has against the Buyer now or in the future for any legal reason.
  2. This security shall be released on request and at the discretion of JULIUS SCHULTE to the extent that their value exceeds the payments to be secured by more than 20 percent on a sustained basis.
  3. The Buyer shall be entitled to process and to sell the goods delivered in the course of ordinary business transactions given that he is not in default. Other disposals, in particular pledging of the reserved property and its assignment as security shall not be allowed.
  4. Processing or modification shall be carried out for JULIUS SCHULTE as the manufacturer, however without any new arising obligations for it. If the reserved property/the retained goods are combined or inseparably mixed with other objects that do not belong to JULIUS SCHULTE, JULIUS SCHULTE shall acquire joint ownership of the new items. It is already agreed now that the Buyer’s (joint) property rights to the combined item are transferred to JULIUS SCHULTE pro rata (invoice value). The Buyer will keep safe the (joint) property for JULIUS SCHULTE free of charge.
  5. The Buyer hereby assigns to JULIUS SCHULTE all claims in total either arising from the resale of the processed or not processed items which are in fully or partly retained goods or from another legal reason (insurance, tort) connected to the goods (including securities and ancillary rights). This occurs to compensate the reservation of title which has become obsolete and to secure JULIUS SCHULTE up to the amount of the value of the retained goods. JULIUS SCHULTE revocably authorizes the Buyer to collect the claims assigned to JULIUS SCHULTE for his account in own name. Such authorization for collection may only be revoked in the event that the Buyer does not meet his payment obligations.
  6. If the Buyer incorporates the claim from the resale of the goods into a current account relationship existing with its customers, then he hereby assigns to JULIUS SCHULTE the accepted balance or the final balance in his favour up to the value corresponding to the overall value of the claim arising from the further sale of the retained goods of JULIUS SCHULTE that had been included into the open account relationship..
  7. In case third parties attempt to seize the retained goods – in particular in case of pledges - the Buyer shall draw attention to JULIUS SCHULTE’s right of ownership and notify JULIUS SCHULTE immediately in order to enable it to enforce the property rights. To the extent that the third party is unable to cover the judicial and non-judicial costs of a legal action, the Buyer is liable against JULIUS SCHULTE.
  8. In case the Buyer has already assigned his receivable accounts from resale of the goods delivered or to be delivered by JULIUS SCHULTE to third parties, in particular in cases of genuine or non-genuine factoring, or otherwise agreed upon the goods, whereby the actual or future security rights of JULIUS SCHULTE are at risk, he has immediately notify JULIUS SCHULTE thereof. Provided that it is non-genuine factoring JULIUS SCHULTE shall be entitled to withdraw from the contract and to claim the return of the delivered goods; the same shall apply for the genuine factoring, unless the Buyer is entitled to decide freely with respect to the purchase price for the claim according to its contract.
  9. In the case of non-performance of substantial contractual obligations, especially with respect to default in payment and in cases mentioned in these General Conditions JULIUS SCHULTE shall be entitled to take back the retained goods. In this case the Buyer shall be obliged to surrender the retained goods. The return of the goods or the assertion of a reservation of title shall not imply a withdrawal from the contract on the part of JULIUS SCHULTE, unless expressly declared otherwise by JULIUS SCHULTE or provided by mandatory law.
  10. If JULIUS SCHULTE takes back the goods following its processing and sells the goods to a third party, it has to pay the difference between the prices before and after its processing to the Buyer.
  11. The Buyer shall be obliged to store properly and to duly insure the reserved goods against theft and damages from water, fire, transport or other damages on its own account and according to the usual operational handling. Such insurance claims the Buyer hereby assigns to JULIUS SCHULTE in the amount of the value of the retained goods.

VIII. Conditions of Payment

  1. If not agreed upon otherwise, invoices are payable net within 14 calendar days from the date of issuance of the invoice, at the latest, however within 30 days upon delivery of the goods.
  2. A payment is only deemed to have been made when JULIUS SCHULTE has the payment at its disposal. In the case of checks the payment is regarded first as being occurred, if the check is cashed.
  3. Should the Buyer be in default of payment then die JULIUS SCHULTE is entitled to charge interest from the date in question at the interest rate in the amount of 8% above the pertinent base interest rate. JULIUS SCHULTE reserves the right to prove higher damages.
  4. If other circumstances become known to JULIUS SCHULTE after the conclusion of the contract which call the creditworthiness of the Buyer into question, in particular a significant deterioration in the Buyer's financial circumstances (e.g. forced execution, insolvency proceedings, dishonour of cheques, cancellation of payments or if due invoices have not been paid by the Buyer despite reminder), then JULIUS SCHULTE shall be entitled to refuse performance or declare that the complete remaining debt be due even if it has accepted cheques, so far as the circumstances are qualified to endanger our claim on reciprocal performance. JULIUS SCHULTE is also entitled in such a case to demand payments in advance or the provision of security. The right to refuse performance shall only exist if the Buyer is not ready to pay despite having been requested to pay on delivery or to provide a security.
  5. The Buyer is entitled to the set-off or to the practice of a right of lien only if counterclaims were validly legally determined or are indisputable.

IX. Liability

  1. JULIUS SCHULTE shall be liable for damages irrespective of legal ground basically only in cases where the damages are based on intent or gross negligence. JULIUS SCHULTE shall be liable for damages in cases of simple negligence irrespective of legal ground only if substantial contractual obligations have been violated which set the achievement of the objective of the contract at risk.
  2. In cases of simple negligence the liability of JULIUS SCHULTE is limited to the foreseeable damage typical for the contract.
  3. If the purpose of the contract is not endangered JULIUS SCHULTE shall not be liable for gross faults of its representatives, unless it does involve fault on the part of leading representatives or leading employees or a serious organisational fault is given.
  4. Claims for compensation of indirect damages, in particular loss of profit, saved expenditure from damage compensation claims of a third party as well as various indirect or resultant damage, cannot be demanded, unless there is evidence of intent or gross negligence or of a violation of a substantial contractual obligation which sets the achievement of the objective of the contract at risk.
  5. The limitations and exclusions of liability set forth in the sections above shall not be applicable in the case of claims originating in malicious acts of JULIUS SCHULTE, as well as in the case of a liability for guaranteed characteristics of state, for claims pursuant to the law on product liability, as well as for damages resulting from the violation of life, body, and/or health.
  6. To the extent the liability of JULIUS SCHULTE is excluded or limited this shall apply also for its bodies, employees, legal representatives and other auxiliary persons of JULIUS SCHULTE.

X. Applicable Law/Place of Jurisdiction

  1. These terms and conditions and all legal relationships between JULIUS SCHULTE and the Buyer shall be subject to the law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
  2. Düsseldorf is the sole place of jurisdiction for any disputes directly or indirectly arising from this contract. JULIUS SCHULTE is also entitled to take proceedings against the Buyer at his place of jurisdiction.

Issuance: September 2010

 

Papierfabrik Julius Schulte Söhne GmbH & Co. KG

Fruchtstraße 28
40223 Düsseldorf

Phone   +49 (0)211 31 083 0
Fax +49 (0)211 31 083 55