General Conditions
for the Sale, Supply and Services of Papierfabrik Julius Schulte Söhne GmbH & Co. KG
1.
Scope/Applicable provisions
1.1
These Terms &
Conditions of Sale (TCS) apply to all business relationships between
Papierfabrik Julius Schulte Söhne GmbH & Co. KG (hereinafter referred
to as “SCHULTE”) and its customers (hereinafter referred to
individually as “the Buyer”). They apply in particular to contracts
for the sale and/or delivery of movable goods, regardless of whether
SCHULTE manufactures the goods itself or purchases them from suppliers
(Sections 433,
651
of the German Civil Code, BGB).
1.2
These TCS shall only apply if the Buyer is an
entrepreneur (14 BGB), a legal entity under public law or a special
fund under public law.
1.3
Unless otherwise agreed, these TCS as applicable at
the time of order shall also apply as a framework agreement to future,
similar orders, albeit in the version most recently communicated to
the Buyer in text form, without
SCHULTE having to draw attention to them in each case. SCHULTE will
inform the Buyer of any changes to these TCS.
1.4
These TCS apply exclusively. Differing, conflicting
or additional terms and conditions on the part of the Buyer shall only
become part of the contract if and to the extent to which SCHULTE has
expressly consented to their validity. This requirement for consent
shall apply in every case, including for instance if SCHULTE
unreservedly executes deliveries to the Buyer despite being aware of
the latter’s terms and conditions.
1.5
Individual arrangements made with the Buyer in
individual cases (including ancillary agreements, supplements and
amendments) shall always take precedence over these TCS. Unless
evidence to the contrary is furnished, the content of such
arrangements shall depend entirely on a written arrangement or written
confirmation by SCHULTE.
1.6
In order to be effective, any legally relevant
declarations and notifications which must be submitted by the Buyer to
SCHULTE after conclusion of the contract (e.g. deadlines, notification
of defects, declaration of withdrawal or reduction of price) must be
submitted in writing.
1.7
SCHULTE conducts its business relationships and all
other legal relationships on the basis of the company’s guiding
principles and compliance provisions. The Buyer recognises that
SCHULTE is bound by these guiding principles and provisions, which can
be viewed or requested from SCHULTE at any time.
2
Offer and conclusion of contract
2.1
SCHULTE’s offers are subject to change and
non-binding, unless they are expressly described as binding.
2.2
Unless otherwise stated, SCHULTE shall be bound by
the conditions and prices contained in an offer expressly described as
binding or fixed for 14 days from when the offer is issued.
2.3
Apart from in exceptional cases where SCHULTE has
made an offer described as binding, the Buyer’s ordering of the goods
shall be considered a binding offer to enter into a contract. Unless
otherwise agreed, SCHULTE has two weeks to accept the Buyer’s offer.
Notification of acceptance may occur expressly (e.g. by confirming the
order in writing or text form) or through action implying intention
(e.g. delivery of the goods).
2.4
Unless it has been expressly agreed in writing that a
certain condition forms a binding part of the contract, information
about what is being delivered and the scope of the delivery (e.g.
dimensions, weights, technical data) in catalogues, brochures or other
representations (e.g. current versions of data sheets), shall only
amount to approximate, non-authoritative service descriptions.
2.5
SCHULTE shall only guarantee that the goods have a
certain condition if this is expressly recorded in writing.
2.6
SCHULTE’s field staff, employees, independent
commercial representatives and other members of the company are not
authorised to make verbal ancillary agreements or provide verbal
commitments or assurances which go beyond the content of the written
contract.
2.7
SCHULTE reserves all copyright and ownership rights
to offer documents, drawings, descriptions, samples and cost
estimates. These may not be passed on, published, copied or otherwise
made accessible to third parties without SCHULTE’s express consent. If
so requested by SCHULTE, the Buyer must return documents and data
carriers and may not retain any copies.
3
Delivery/Delivery period/Delayed delivery
3.1
In the absence of any other agreement, deliveries by
SCHULTE are shipped Ex Works (EXW) in the sense of the current
INCOTERMS.
3.2
Unless expressly agreed as binding, delivery dates or
periods specified by SCHULTE are non-binding. If binding delivery
periods have been agreed and these cannot be observed for reasons for
which SCHULTE is not responsible (unavailability of performance),
SCHULTE shall inform the Buyer of this without delay, notifying it of
the expected new delivery period. If performance is not available
during the new delivery period either, SCHULTE shall be entitled to
either withdraw in part or fully from the contract, or to postpone the
delivery for the duration of the hindrance. In the case of withdrawal,
the Buyer shall be reimbursed for any (partial) payments already made.
In this respect, cases of unavailability of performance include in
particular the non-timely supply of goods to SCHULTE by suppliers, if
SCHULTE has not concluded a congruent hedging transaction, neither
SCHULTE nor the supplier is at fault and SCHULTE is not obliged to
procure the goods in the individual case, as well as such
circumstances which SCHULTE cannot avert with due care reasonable
under the circumstances of the case and which it cannot foresee when
concluding the contract, e.g. war, developments in monetary or trade
policy or other sovereign activities, internal unrest, terrorist
attacks, the forces of nature, fire, strikes, lockouts, an involuntary
lack of supply of raw materials, transport and operational disruptions
and other cases of force majeure.
3.3
If the originally agreed delivery period is exceeded
by more than two months for reasons for which SCHULTE is not
responsible, the Buyer shall be entitled to withdraw with regard to
the non-fulfilled part of the contract. In order to exercise this
right, the Buyer must notify SCHULTE in writing at least 14 days in
advance of its intention to exercise its right of withdrawal. This
right of withdrawal shall not apply if delivery occurs during this
period.
3.4
If the delivery date is postponed in accordance with
the above provisions or if SCHULTE is released from its obligation,
the Buyer shall not be entitled to derive any claims for damages from
this.
3.5
This does not affect statutory rights of withdrawal
in cases where SCHULTE is to blame for the delivery period having been
exceeded. A delay in delivery by SCHULTE shall be subject to the
statutory provisions, although in every case the Buyer must submit a
reminder setting an appropriate deadline.
3.6
If SCHULTE is in default of delivery and SCHULTE is
to blame, the Buyer may demand a lump sum as compensation for the
damage caused by the delay. The lump-sum compensation shall amount to
0.5% of the net price of the goods delivered late (delivery value) for
every complete calendar week of the delay, although no more in total
than 5% of the delivery value of the goods delivered late. SCHULTE
reserves the right to prove that the Buyer has incurred no damages, or
significantly lower damages than the above-mentioned lump sum. SCHULTE
shall be entitled to effect partial deliveries and partial
performance, provided the partial delivery or partial performance is
reasonable for the Buyer and the latter has no obvious interest in not
receiving partial deliveries.
3.7
SCHULTE’s observance of any agreed obligations to
deliver or perform is subject to the Buyer first fulfilling its
obligations, and all of the conditions for which the Buyer is
responsible, in a timely and proper manner.
3.8
If the Buyer is in default of acceptance, SCHULTE
shall be entitled to demand compensation for the damage it incurs as a
result. SCHULTE can then store the goods at the Buyer’s expense and
demand reasonable storage costs, even if the storage occurs in its own
warehouse. In such cases, SCHULTE shall charge a lump sum of €500 per
heavy goods vehicle for the initial removal and 0.50 euros per day and
tonne, beginning on the agreed delivery date or – in the absence of a
delivery date – when notification is sent out that the goods are ready
for shipment. This shall not affect the option of proving that the
actual damages were higher, or our statutory claims (in particular
compensation for additional expenses, reasonable compensation,
termination); any further monetary claims shall however be offset
against the lump sum. The Buyer is free to prove that SCHULTE has
incurred no damages, or significantly lower damages than the
above-mentioned lump sum. Once the Buyer is in default of acceptance,
the risk of accidental deterioration and accidental loss passes to the
Buyer.
3.9
If SCHULTE uses pallets for transportation purposes,
the Buyer shall be obliged to exchange these for the same number of
pallets, of the same quality, from its own stock. It shall otherwise
be required to pay damages.
3.10
This does not affect the rights of the Buyer as
described in Article 9 of these TCS or the legal rights of SCHULTE, in
particular in cases were a performance obligation is excluded (e.g.
due to impossibility or unreasonableness of performance and/or
subsequent performance).
4
Passing of risk
4.1
In the case of deliveries Ex Works, the risk passes
to the Buyer as soon as the consignment has been handed over to the
person carrying out the transport or the consignment has left
SCHULTE’s warehouse for shipment.
4.2
If shipment is delayed or not carried out at the
request or due to the fault of the Buyer, the risk shall pass to the
Buyer when notification is sent out that the goods are ready for
shipment.
5
Prices
5.1
Unless otherwise agreed, the prices are stated in
EUROS Ex Works (duty unpaid) and include loading on our premises, but
excluding packaging and, if applicable, statutory value added tax.
5.2
If there are more than 4 months between conclusion of
the contract and the agreed or actual delivery date and SCHULTE is not
responsible for the latter, SCHULTE shall be entitled to adjust the
price, if its own costs rise by more than 5%, in particular as a
result of increases in material prices or transport costs and wage
increases. If the price rises by more than 10%, the Buyer shall be
entitled to withdraw from the contract. This does not apply if a fixed
price agreement has been concluded for the period in question.
5.3
If partial payment or instalment agreements have been
concluded, the entire amount covered will become due if the Buyer is
delayed by more than 10 days in settling a partial payment.
5.4
If, after the contract has been concluded, public
levies and charges (e.g. duties, import and export charges) are
introduced or raised, SCHULTE shall be entitled to add such additional
costs to the price.
6
Guarantee
6.1
The primary basis of any claims for defects shall be
the agreement reached concerning the condition of the goods. An
agreement concerning the condition of the goods means the product
descriptions described as such which were made available to the Buyer
before it placed its order or were included in the contract in the
same way as these TCS. Claims for defects shall not be justified in
cases of only insignificant deviation from the agreed condition or
only insignificant impairment of serviceability.
6.2
Apart from when expressly agreed otherwise or when
product data sheets state specific tolerances, with regard to
tolerances for quantities, dimensions, thickness, squareness, basis
weight and counting accuracy etc. for paper and cardboard and for
other properties and test methods, Articles 12 to 20 of the General
Conditions of Sale of Paper and Board Manufacturers in EEC, as
recommended by the European Federation of the Pulp, Paper and Board
Industry (CEPAC), shall apply; published in 1991 before updated
versions were issued, these are available from SCHULTE for reference
purposes.
6.3
In any case, dimensional and weight deviations are
permissible within the scope of standard commercial tolerances and
relevant DIN regulations. In addition, SCHULTE reserves the right to
make dimensional and weight changes in the context of technical
development, standardisation work and manufacturing possibilities,
provided this does not adversely affect the contractual usability.
6.4
Calculations depend on the delivery weights and
quantities determined by SCHULTE.
6.5
Damage caused to the first five layers of the
respective paper roll during transport are not a defect entitling the
Buyer to assert claims for defects.
6.6
SCHULTE reserves the right to deliver goods of a
better quality than agreed upon; this shall not entitle the Buyer to
always be supplied with the better quality.
6.7
The period for asserting claims for defects shall be
1 year from the beginning of the statutory period of limitation. This
period does not apply where the law prescribes longer periods, in
particular for recourse claims (Section 479 Para. 1 BGB) or in cases
or intent, the fraudulent concealment of a defect and failure to
fulfil a condition-related guarantee. This does not affect the
statutory provisions on suspension of expiry, suspension and
recommencement of limitation.
6.8
Claims for defects presuppose that the Buyer inspects
the products on receipt in accordance with Section 377 of the German
Commercial Code (HGB).
6.9
SCHULTE must be informed in writing of any defects as
follows:
a) in cases of transport damage and obvious deviations
with regard to quality/type, quantities or agreed conditions, without
delay upon discovery, but not later than one week after receipt of the
products delivered; externally visible damage must be reported and
also documented in an appropriate manner on the shipping documents, if
present, in order to narrow down the point in time when the damage
occurred,
b) in the case of defects which can be detected by
superficial inspection or simple and random checks, without delay upon
discovery, but not later than two weeks after receipt of the products
delivered,
c)
in the case of all other latent defects, without delay upon discovery.
It is sufficient for the complaint to be submitted punctually in order to comply with the specified deadlines. Failure to comply with obligations to notify SCHULTE of defects will result in the loss of claims.
6.10
SCHULTE shall decide whether to repair the defective
goods or deliver a replacement. If SCHULTE fails to deliver a
replacement or repair the defective goods within a reasonable period
of time, or if the improved or subsequently delivered products are
also defective, the Buyer shall have the right to demand a reduction
in the purchase price or demand rescission of the contract.
6.11
If only part of the goods is defective, the Buyer
shall not be entitled to fully rescind the contract.
6.12
The Buyer shall not be entitled to assert any claims
arising from the expenses necessary to enable subsequent performance,
in particular transport, travel, labour and material costs, as far as
the expenses increase because what has been delivered has subsequently
been transferred to a place other than the Buyer’s premises or the
originally agreed place of delivery, unless such transfer is in
accordance with the thing’s intended use.
6.13
If a model, a sample or a batch of goods delivered by
SCHULTE displays a particular property that is so crucial for
continued use by the Buyer or its customers that this property is
certainly one of the primary reasons for the (subsequent) order, the
Buyer shall be obliged to notify SCHULTE separately of this fact and
of the specially requested property or condition. If this notification
is not given and if the (subsequent) order does not display the
desired property when the risk passes to the Buyer, SCHULTE shall not
be liable for this.
6.14
If the Buyer intends to put one of SCHULTE’s products
it already uses to a new use, the Buyer shall test this new use in
advance. Failure to do so will result in any claims for defects being
void.
7
Retention of title
7.1
The delivered goods shall remain the property of
SCHULTE until full settlement of all of SCHULTE’s claims (including
all current account claims) against the Buyer due now or in future for
any legal reason.
7.2
SCHULTE shall be required to release this security
upon the Buyer’s request, provided that its realisable value
persistently exceeds the claims to be secured by more than 10%.
7.3
Provided it is not in default, the Buyer shall be
entitled to process and sell goods which are still subject to
retention of title by SCHULTE. Other dispositions, in particular
pledges or assignments as security, are prohibited.
7.4
Processing or modifications shall always be carried
out for SCHULTE as the manufacturer, albeit without the emergence of
new obligations. If any processing, mixing or combining occurs with
third-party goods and the third party continues to hold ownership
rights, SCHULTE shall acquire co-ownership rights proportional to the
invoice values of the processed, mixed or combined goods. The Buyer
shall keep the goods (jointly) owned by SCHULTE free of charge. Goods
which SCHULTE (jointly) owns under Article 7 are referred to in the
following as ‘retained goods’.
7.5
To compensate for the loss of the (joint) ownership
of the retained goods and as security for SCHULTE, the Buyer hereby
already assigns to SCHULTE claims involving the retained goods which
arise from resale or for any other legal reason (insurance, unlawful
acts) (including securities and ancillary rights), in full or
proportionally to SCHULTE’s co-ownership share. SCHULTE hereby accepts
this assignment. SCHULTE grants the Buyer the revocable right to
collect a claim assigned to SCHULTE for its account in its own name.
This authorisation to collect can only be revoked if the Buyer does
not properly fulfil its payment obligations.
7.6
If the Buyer integrates claims resulting from the
resale of the retained goods into an existing current account
relationship with its customer, the Buyer hereby already assigns to
SCHULTE the amount of the recognised balance or final balance in its
favour which corresponds to the total amount of the claims included in
the current account relationship resulting from the resale of the
retained goods. SCHULTE hereby accepts this assignment.
7.7
If third parties gain access to the retained goods –
in particular if they are seized – the Buyer shall point out that they
are the property of SCHULTE and inform the latter without delay so
that SCHULTE can enforce its ownership rights. If the third party is
unable to compensate SCHULTE for judicial or extra-judicial costs
incurred in this context, the Buyer shall be liable for these.
7.8
If the Buyer has already assigned claims arising from
the resale of the retained goods to third parties, in particular due
to non-recourse or recourse factoring, or made any other arrangements
which could impair SCHULTE’s security rights now or in the future, it
must notify SCHULTE of this without delay. In the event of recourse
factoring, SCHULTE shall be entitled to withdraw from the contract and
demand that the retained goods be returned; the same applies to
non-recourse factoring, provided the Buyer is not contractually
entitled to freely dispose of the purchase price for the claim.
7.9
In the event of a culpable breach of essential
contractual obligations – in particular default of payment and in the
cases specified in these TCS – SCHULTE shall be entitled to demand the
retained goods. In such cases the Buyer shall be obliged to surrender
the retained goods. The taking back of the retained goods or the
assertion of retention of title shall only constitute a withdrawal
from the contract if SCHULTE expressly declares this or this is
legally mandatory.
7.10
If SCHULTE takes back goods that have come into being
as a result of the further processing of retained goods and sells
these to third parties, then if the proceeds from the sale of these
goods exceed the secured claim, SCHULTE shall pay the difference to
the Buyer.
7.11
The Buyer is obliged to store the retained goods
properly and to insure them, in accordance with customary practice, at
its own expense against theft as well as fire, water, transport and
other damage. The Buyer hereby assigns to SCHULTE its insurance claims
up to the value of the retained goods or of SCHULTE’s co-ownership
share. SCHULTE hereby accepts this assignment.
8
Payment terms
8.1
Unless otherwise agreed, SCHULTE’s invoices shall be
due and payable within 14 calendar days after the invoice date, but
not later than 30 days after delivery. SCHULTE shall however be
entitled at any time – including during an existing business
relationship – to carry out a delivery in whole or in part only in
return for advance payment. Any such condition must be pointed out by
SCHULTE no later than when confirming the order.
8.2
Payment shall not be considered to have been made
until SCHULTE can freely dispose of the amount paid. In the case of
cheques, payment shall be considered to have been made when the cheque
is cashed.
8.3
Once the deadlines specified under Article 8.1 have
passed, the Buyer shall be in default. If the Buyer is in default,
SCHULTE shall be entitled to demand default interest at the legal rate
(currently 9 percentage points above the base rate). SCHULTE is
permitted to prove that the damage caused by the default is higher.
8.4
If, after conclusion of the contract, SCHULTE becomes
aware of circumstances which call into question the creditworthiness
of the Buyer, in particular a significant deterioration of its
financial situation (e.g. execution of judgment, bankruptcy, inability
to cash cheques, suspension of payments or if the Buyer repeatedly
fails to settle invoices despite being reminded), then if the
circumstances may be capable of jeopardising entitlements to
consideration, SCHULTE shall be entitled to refuse performance and
call in all outstanding debt, even if it has accepted cheques. In such
cases, SCHULTE shall also be entitled to demand advance payments or
security payments. The right to refuse performance shall only exist if
the Buyer is not prepared, despite being requested, to perform
reciprocally and simultaneously or to pay a security payment.
8.5
The Buyer shall only be
entitled to offset or exercise a right of retention if its
counterclaims are legally binding or not disputed by SCHULTE.
9
Liability
9.1
Unless otherwise specified in these TCS, including
the following provisions, in the event of a breach of contractual and
non-contractual obligations SCHULTE shall be liable in accordance with
statutory provisions.
9.2
As regards fault-based liability, SCHULTE shall in
principle only be liable for damages in cases of intent or gross
negligence, whatever the legal grounds.
9.3
In the case of slight negligence, then unless a more
lenient standard of liability applies SCHULTE shall – irrespective of
the legal grounds of the damages – only be liable in accordance with
the legal provisions (e.g. standard of care in one’s own affairs)
a) for damage arising from injury to life, limb or
health and
b)
for damage arising from the not insignificant breach of an essential
contractual obligation (an obligation whose fulfilment makes possible
the correct execution of the contract in the first place and on
compliance with which the party to the contract regularly relies and
may rely); however, in such cases SCHULTE’s liability shall be limited
to the foreseeable damage which must typically be expected.
9.4
In the absence of a threat to the contractual
purpose, SCHULTE shall not be liable for gross fault on the part of
its vicarious agents, provided that this does not involve fault on the
part of senior vicarious agents or senior employees and provided there
is no other serious negligence on the part of the organisation.
9.5
The limitations and exclusions of liability described
in the above paragraphs shall not apply if SCHULTE has fraudulently
concealed a defect or provided a guarantee concerning the condition of
the goods. Nor do they apply to claims under the German Product
Liability Act.
9.6
As far as SCHULTE’s liability is excluded or limited
under Articles 9.2 and 9.3, this shall apply accordingly to SCHULTE’s,
organs, employees, legal representatives and other vicarious agents.
10
Applicable law/Place of jurisdiction
10.1
These Terms & Conditions of Sale and all legal
relationships between SCHULTE and the Buyer are subject to the law of
the Federal Republic of Germany, excluding uniform international law,
in particular the UN CISG. The requirements and effects of the
retention of title as described in Article 7 are subject to the law of
the respective storage location of the goods, inasmuch as the choice
of German law is inadmissible or ineffective.
10.2
Düsseldorf shall be the sole place of jurisdiction
for all disputes arising directly or indirectly from the contractual
relationship, provided that a sole place of jurisdiction is not
already prescribed by statutory provisions. SCHULTE shall however also
be entitled to sue the Buyer at its registered office.
Last amended: July 2017

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 |
