General Terms and Conditions of Sale and Delivery of Papierfabrik Adolf Jass GmbH & Co. KG and its affiliates pursuant to Sections 15 et seq. of the German Companies Act (“GTCSD”)
1. General provisions
1.1 These General Terms and Conditions of Sale and Delivery (“GTCSD”) are an integral part of the contracts entered into with Papierfabrik Adolf Jass GmbH & Co. KG and its affiliates pursuant to Sections 15 et seq. of the German Companies Act (“Jass”) in relation to all deliveries and services (together “delivery”) and apply exclusively between merchants, legal entities under public law and special funds under public law.
1.2 These GTCSD shall apply even if they are no longer explicitly referred to with future deliveries.
1.3 The incorporation of the buyer’s general terms and conditions is explicitly objected to, unless Jass recognises these in writing as a supplement to its GTCSD. Providing a delivery shall not constitute such recognition. These GTCSD shall be deemed to have been accepted by the buyer no later than when the goods are received.
2. Quotation, order confirmation, order details
2.1 Quotations from Jass are always non-binding and without obligation. All purchase orders must be accepted by way of a written order confirmation from Jass which determines the content of the contract. Any verbal subsidiary agreements or assurances which extend beyond the content of the written contract shall be ineffective.
2.2 If the order confirmation from Jass contains minor changes compared to the purchase order, these changes shall be deemed to have been approved by the buyer if they are not objected to within three working days.
2.3 Orders for the delivery of paper (newly manufactured or from stock) must contain details which clearly inform the supplier Jass about at least the following aspects:
a) order quantity,
b) quality with reference to a grade,
c) reel width,
d) reel diameter,
e) inside diameter of the sleeves,
f) grammage (g/m2), g) delivery deadline, destination, shipping method and all necessary shipping instructions,
h) agreed price and
i) agreed terms of payment.
2.4 For reels of any kind, the gross weight (weighed weight) is calculated.
3. Terms of payment, collateral, withdrawal
3.1 All prices are exclusive of the value added tax that applies at the time of invoicing.
3.2 Jass shall only accept bills of exchange by explicit agreement for the sake of payment. Any costs incurred in redeeming them shall be paid by the buyer. The debt shall only be settled on redemption.
3.3 Jass may ask for payment of its debts, demand collateral or withdraw from the contract if, after the contract has been entered into, it becomes apparent that the payment claim is endangered by doubts about the buyer’s creditworthiness. The buyer’s creditworthiness shall be doubtful in particular if there are applications for insolvency proceedings or the initiation thereof, individual enforcement actions, protest of a bill of exchange and incorrect or incomplete details provided by the buyer about the facts substantiating their creditworthiness.
3.4 The buyer shall only enjoy rights of set-off and retention if the counterclaims are uncontested or legally established. Set-off and the exercise of rights to refuse performance and retention in respect of claims, including claims arising from the same contractual relationship, shall require the explicit written consent of Jass.
4. Shipping, packaging
4.1 The shipping method shall be defined in the order confirmation with reference to the relevant clause of Incoterms in each individual case, in the applicable version (currently Incoterms 2010, published by the International Chamber of Commerce, Paris). This clause stipulates who, in the event of the
goods being lost or damaged, bears the financial risk (place of performance, transfer of risk) and which transport costs are to be paid by the seller and which by the buyer.
4.2 The goods shall be delivered including packaging and set-up materials of the usual type as well as paper cores. Transport packaging and all other packaging based on the packaging regulation shall not be taken back. The buyer is obliged to dispose of the packaging at its own expense.
5. Delivery period, delay
5.1 If a delivery period has been agreed, it shall commence when the order confirmation is sent out, but not before all production-relevant issues have been clarified. If after
the order confirmation the buyer demands changes which have an impact on the production time, the delivery period shall start again when these changes are confirmed.
5.2 If the buyer collects the goods from Jass, the delivery period shall be met if Jass has notified the buyer that the goods are ready to be dispatched within the agreed delivery period. If dispatch of the goods has been agreed, the delivery period shall be met if Jass dispatches the delivery within the agreed delivery period.
5.3 If Jass fails to meet an agreed delivery period for reasons for which it is responsible, the buyer shall have the right, after an appropriate extension period has elapsed without success, to withdraw from the contract; but if there is a partial delay, only to the extent that the partial service provided is of no interest to the buyer. The extension period must be at least two weeks. Withdrawal must be declared immediately and in writing after the
extension period expires. Claims for compensation on the part of the buyer on account of a delayed delivery are excluded, unless the delay has been caused by intent, gross negligence or the breach of substantial contractual obligations. Apart from this, claims for compensation shall be governed by clause 8.
5.4 In the case of force majeure or other circumstances for which Jass is not responsible, e.g. forces of nature, accidents, strikes, lockouts, breakdowns, difficulties in procuring raw materials, agreed deadlines shall be extended by the length of the interruption and an appropriate start-up period. If the interruption lasts for longer than two weeks, both parties may, once an appropriate extension period elapses, withdraw in full or in part from the contract in respect of the specific delivery. Claims for compensation shall not exist in such cases.
5.5 These liability limitations shall not apply if a commercial fixed-date transaction has been agreed.
5.6 If the buyer defaults in acceptance, Jass shall have the right to charge the buyer for the additional expenses caused by the default in acceptance. In addition, Jass shall have the right to withdraw from the contract if an extension period of two weeks expires without success. Further claims for compensation shall remain reserved.
6. Retention of title
6.1 Jass shall retain title to the item delivered until payment is received for all debts arising from the business relationship with the buyer. The retention of title shall also extend to the recognised balance, if Jass charges the debt to the buyer’s current account (current account reservation).
6.2 If the buyer breaches the contract, in particular defaults on payment, Jass shall be entitled, after setting an appropriate period of grace, to take back the reserved goods at the buyer’s expense; the buyer shall be obliged to surrender them. The taking back of the reserved goods by
Jass shall always constitute a withdrawal from the contract. The withdrawal from the contract shall not preclude claims for compensation against the buyer.
6.3 The buyer shall be entitled to process and sell on the reserved goods in the normal course of business; however, it already assigns to Jass all claims amounting to the final invoice amount (including value added tax) which it accrues against its buyers or third parties from the further sale, regardless of whether the reserved goods have been sold on without or following processing. The buyer shall also be authorised to collect this debt after it has been assigned. If the buyer fails to properly meet its payment obligations and defaults on payment, Jass may revoke this collection authorisation. In this case, Jass may demand that the buyer disclose the assigned claims and the debtors, transfer all information required for collection, surrender appropriate documents and notify the debtor about the assignment.
6.4 The buyer shall not be entitled to pledge the reserved goods or use them as security.
6.5 The buyer shall always perform processing or transformation of the reserved goods for Jass, without it accruing any obligations as a result. If the reserved goods are processed with other items which do not belong to Jass, Jass shall acquire joint title to the new item based on the ratio of the invoice value of the reserved goods relative to the other processed items at the time of processing. The item which is produced by the processing shall be subject to the same provisions as the reserved goods.
6.6 If the reserved goods are inseparably combined or mixed with other items which do not belong to Jass, Jass shall acquire joint title to the new item based on the ratio of the value of the reserved goods relative to the other combined or mixed items at the time of combination or mixing. If the combination or mixing was done in such a way that the buyer’s item is to be considered the main item, it is agreed that the buyer shall transfer joint title to Jass in accordance with its unit value.
6.7 Jass pledges to release the securities to which it is entitled at the buyer’s request to the extent that the value of the debts to be secured, if they have not yet been settled, exceeds this by more than 10%.
6.8 In the case of seizures or other actions of third parties, the buyer shall invoke the title of Jass and notify Jass immediately in writing so that Jass can lodge a third-party action against execution (Section 771 of the Code of Civil Procedure). If the third party is unable to reimburse Jass for the judicial and extra-judicial costs of a third-party action against execution, the buyer shall be liable to reimburse Jass for the loss incurred.
6.9 The buyer shall be obliged to sufficiently insure the reserved goods at its own expense and to present the insurance certificate to Jass immediately at its request.
7. Warranty, complaints
7.1 Jass does not provide any purchase assurances or warranties, unless by separate agreement in writing.
7.2 The buyer is obliged to complain to Jass in writing about any defects with the delivery immediately, but no later than within 14 days of receipt thereof. Hidden defects
must be complained about within 14 days of being discovered. Apart from this, Section 377 of the German Commercial Code shall apply.
7.3 Customary deviations within the tolerance limits do not constitute a defect.
7.4 In the case of split deliveries, the excess or short deliveries may be spread across the individual deliveries.
7.5 If at the point when risk is transferred there is a defect for which Jass is responsible, Jass shall be entitled to provide a replacement delivery (“supplementary performance”) within an appropriate deadline period. If the supplementary performance fails, the buyer may withdraw from the contract relating to the specific delivery or reduce the purchase price. If only part of the delivery is defective, the buyer may only assert rights in relation to the defective part. Clause 8 applies in respect of claims for compensation.
7.6 Warranty claims which are not based on compensation shall expire 12 months from the date of delivery. This does not apply in the event of deception or if a warranty is taken out or there is a deliberate breach of an obligation.
7.7 Claims for defects which are based on compensation shall also be governed by the regulation set out in clause 8.
8. Liability, limitation of liability
8.1 Jass shall be liable in accordance with the statutory provisions in cases of intent or gross negligence by Jass or a representative or vicarious agent and in the case of loss of life, physical injury or damage to health caused by slight negligence. Apart from this, Jass shall only be liable in the case of the culpable breach of substantial contractual obligations or if Jass has maliciously concealed the defect or has provided a guarantee in respect of the condition of the purchased item. However, the claim for compensation for the culpable breach of substantial contractual obligations shall be limited to the foreseeable level of loss typical of the contract, unless another of the cases listed in sentence 1 or 2 also applies at the same time.
8.2 The regulations in paragraph 1 above apply to all claims for compensation (in particular compensation alongside performance and compensation instead of performance), and specifically on whatever legal ground, in particular on account of defects, the breach of obligations under the contract or liability in tort. They also apply to the claim for reimbursement of expenses incurred in vain.
8.3 The liability of Jass for indirect losses, consequential losses, lost profit, financial losses, losses caused by business interruptions and losses
resulting from third-party claims against the buyer is excluded.
8.4 The level of all the buyer’s claims for compensation against Jass, on whatever legal basis, shall be limited to no more than the value of the purchased item in each case.
8.5 The statutory limitation period shall apply to claims for compensation in the event of intent and gross negligence and a loss of life, physical injury and harm to health based on a deliberate or negligent breach of an obligation by Jass.
8.6 Bases of claims under data protection law are not covered by this liability regulation.
9. Place of performance, jurisdiction, applicable law, data protection
9.1 The place of performance, exclusive jurisdiction and payment is Fulda.
9.2 All legal relationships between the buyer and Fass shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
9.3 If and to the extent that special terms and conditions have been agreed in writing, these shall take precedence over the terms and conditions above.
9.4 If individual provisions in a contract between Jass and the buyer are ineffective, this shall not affect the effectiveness of the rest of the contract.
Papierfabrik Adolf Jass GmbH & Co. KG
Hermann-Muth-Straße 6, 36039 Fulda
Register court: Fulda HRA 1196