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GTC

 

General Terms and Conditions

 

§ 1 Scope

§ 2 Offer and Conclusion of Contracts

§ 3 Prices and Payment

§ 4 Delivery and Delivery Time

§ 5 Shipment, Packaging, Passing of Risk, Acceptance, Quantity

§ 6 Warranty

§ 7 Property Rights

§ 8 Liability for Damages in Case of Default

§ 9 Retention of Title

§ 10 Concluding Provisions

§ 1 Scope

 

Any and all deliveries, services, and/or offers on part of the seller shall be based exclusively on these General Terms and Conditions.  These General Terms and Conditions shall form an integral part of any and all contracts and/or agreements which the seller enters into with the seller’s contracting parties (hereinafter also referred to as “the client” and/or “the buyer”) with regard to any and all deliveries and/or services offered by the seller.  These General Terms and Conditions shall also apply to any and all future deliveries, services, and/or offers which are rendered to the client, even if they are not separately agreed upon.

Any and all general terms and conditions of the client and/or of any third party shall not apply even if the seller does not expressly contradict their scope and validity in individual cases.  Even if the seller refers to a written document which contains and/or refers to any and all general terms and conditions of the client and/or of any third party, this shall not constitute any consent within the scope and validity of such general terms and conditions.

 

 

§ 2 Offer and Conclusion of Contracts

 

Any and all offers submitted by the seller shall be subject to alteration and shall be non-binding unless they are not expressly marked as being binding and/or unless they do not contain a specific term of acceptance.

Any and all legal relationships between the seller and the buyer shall be solely governed by the purchase contract which needs to be concluded in writing and which shall also include these General Terms and Conditions.  This purchase contract shall fully reflect any and all oral agreements and/or understandings made between the contracting parties on the subject matter of this contract.  Any and all oral commitments made by the seller prior to the conclusion of this contract shall not be legally binding and/or any and all oral agreements between the contracting parties shall be replaced by the written contract unless it is not expressly stated therein that these oral commitments and/or oral agreements continue to be effective and binding.  Any and all amendments to and/or alterations of any and all agreements entered into, including these General Terms and Conditions, must be made in writing in order to become valid and effective.  With the exception of the managing director(s) and/or of any and all authorized representatives, no employee of the seller shall be entitled to enter into any and all oral agreements deviating from the aforementioned written contract(s) and/or agreement(s).  In order to comply with the written form, any and all transmissions by telefax shall suffice; apart from that, any and all transmissions by telecommunication, in particular by email, shall be considered insufficient.

Any and all details and/or information provided by the seller on the subject matter of the delivery and/or service (for example, weights, dimensions, usage values, load capacities, tolerances, and/or technical data) as well as any and all of the seller’s representations of the same (for example, drawings and/or illustrations) shall only be applicable approximately if and to the extent that their usability for the contractually intended purpose does not require any exact conformity.  They shall not constitute any guaranteed characteristic features, but they shall serve as descriptions and/or identifications of the respective delivery and/or service.  Any and all deviations which are customary in the specific trade and/or any and all deviations which are the result of any legal provision and/or which represent any technical improvement, as well as any and all replacements of any and all parts by any and all equivalent parts shall be admissible provided that they neither adversely affect nor impair the usability for the contractually intended purpose.

 

The seller shall retain the ownership and/or copyright for any and all offers and/or cost estimates issued by the seller as well as for any and all drawings, illustrations, calculations, flyers, brochures, catalogs, models, tools as well as for any and all other documents and/or any and all other resources.  Without the express consent of the seller, the client may neither make these objects, nor any contents thereof, accessible to any third parties, nor disclose them nor copy them nor use them nor have them used by any third parties.  Upon request of the seller, the client must return these objects in their entirety to the seller and/or, where applicable, destroy any and all copies made of them if they are no longer needed by the client in the proper course of the client’s business and/or if any negotiations do not result in the conclusion of a contract.

 

§ 3 Prices and Payment

 

Any and all prices shall apply to the scope of services and/or deliveries included in the respective order confirmations.  Any and all additional and/or special services shall be charged separately.  Any and all prices shall be stated in euros (€) ex works plus packaging, the applicable statutory value added tax, customs duties in case of exports as well as levies, fees, and/or any other governmental charges.

Any and all invoice amounts must be paid within 14 (fourteen) days without any deductions unless otherwise agreed upon in writing.  The respective date of issuance of an invoice shall be decisive for the date of payment.  Any and all cheques shall not be considered as payments unless they have been cashed in and/or redeemed.  If the client fails to pay by the due date, then interest shall be charged on the outstanding amount(s) at a rate of 5 (five) percent p. a. as from the due date; the enforcement of any higher interest rates and/or any additional damages in the event of any default shall remain unaffected.

The offsetting of any and all counterclaims by the client and/or the withholding of any and all payments against such claims shall be permitted only insofar as these counterclaims are undisputed and/or have been established as being legally binding.

The seller shall be entitled to make any and all outstanding deliveries and/or render any and all outstanding services only against advance payment and/or security deposit if and to the extent that, after the conclusion of the contract and/or agreement, any circumstances become known to the seller which are eligible to considerably reduce the client’s creditworthiness and/or which jeopardize and/or endanger payment of any outstanding claims and/or receivables of the seller by the client under the respective contractual relationship (including those arising from any other individual orders to which the same framework agreement applies).

 

§ 4 Delivery and Delivery Time

 

Any and all deliveries shall be made ex works.

Any and all terms and/or deadlines announced by the seller for any and all deliveries and/or services shall be deemed to be always approximate unless any fixed term and/or any fixed deadline has been expressly promised and/or agreed upon.  Insofar as any shipment has been agreed upon, any and all delivery dates and/or delivery deadlines shall refer to the actual point in time when the goods to be shipped are handed over to the forwarding agent, freight carrier, and/or any other third party entrusted with such transport.

Notwithstanding the seller’s rights arising from any and all defaults on part of the client, the seller shall be authorized to request from the client an extension of the delivery and service terms and/or a postponement of the delivery and service deadlines by the period during which the client fails to meet and/or fulfill the client’s contractual obligations towards the seller.

The seller shall not be held liable for any and all impossible and/or delayed deliveries caused by force majeure and/or by any and all other events which were not foreseeable at the time when the contract was concluded (for example, any kind of operational disruption and/or disturbance, difficulties in acquiring materials and/or energy, transportation delays, strikes, legitimate lockouts, shortages of labor, energy, and/or raw materials, difficulties in procuring the necessary official approvals and/or permits, official measures, and/or any and all non-deliveries, incorrect, incomplete, and/or late deliveries by suppliers) which are not the seller’s responsibility.  Insofar as such events essentially hamper and/or impede the seller, and/or prevent the seller from making deliveries and/or rendering services, and insofar as the obstacle and/or hindrance is not only of a temporary nature, then the seller shall be entitled to rescind the contract.  Should these obstacles and/or hindrances prove to be of a temporary nature, then the delivery and service terms shall be extended and/or the delivery and service deadlines shall be postponed by the period during which these obstacles and/or hindrances occurred plus a reasonable lead time.  Insofar as the client cannot be expected to accept the delivery and/or service as a result of the delay, the client shall be entitled to withdraw from the contract by immediately submitting a written declaration to the seller.

The seller shall only be entitled to any and all partial deliveries if and to the extent that the client can use the partial delivery within the scope of the contractually intended purpose, the delivery of the remainder of the ordered goods is safeguarded and assured, and/or the client, thus, incurs no major additional expenditures and/or no additional costs (unless the seller declares the seller’s willingness to bear such costs).

Should the seller be in default with any delivery and/or service, and/or should it become impossible for the seller to make and/or render any delivery and/or service for whatever reason, then the seller’s liability shall be limited to compensation for damages in accordance with § 8 of these General Terms and Conditions.

 

§ 5 Shipment, Packaging, Passing of Risk, Acceptance, Quantity

 

In any and all cases, the merchandise travels at the risk and expense of the buyer even if the merchandise has been sold “free place of receipt.”  When selling “freight paid”/“carriage paid,” “free quay”/“free docks,” “free,” and/or “cif” to domestic stations, the seller has to bear only the normal freight costs, and/or when selling “fob,” “free on ship,” and/or “free on rail,” the seller has to bear only the normal delivery costs whereas any and all surcharges and/or demurrages incurred as well as any and all other costs are to be borne by the buyer.  The forwarding route and/or the means of transport shall be determined by the seller in the event that the buyer has failed to unilaterally establish the respective provisions in a timely manner.  In particular, the seller shall be free to decide whether the transportation shall be carried out directly or indirectly, with or without transshipment.  The seller shall neither be liable for any delays in the transportation nor for the full utilization of the load capacity nor for choosing the cheapest transportation.

Any type of shipment and/or any packaging are subject to the due discretion of the seller.  Any and all packagings which incur additional costs and/or expenditures when compared to standard packaging shall require a surcharge.  Any and all packaging materials of the usual kind such as paper, wood, cardboard, and/or binding materials shall not be taken back.

Any and all risks shall pass on to the client by no later than the point in time when the respective delivery item is handed over (whereby the beginning of the loading procedure shall be decisive) to the forwarding agent, freight carrier, and/or any other third party who has otherwise been designated to perform the respective shipment.  This shall also apply in the event that any partial deliveries are made and/or in the event that the seller has also assumed any additional services (for example, the shipment).  If the shipment and/or the handover is delayed as a result of any circumstances for which the client is responsible, then the risk shall pass on to the client starting on the day on which the seller is ready to dispatch the merchandise and/or on the day on which the seller has notified the client of such readiness.

Any and all collections of goods shall only be possible upon prior notification; at least 48 (forty eight) hours in advance.  If the merchandise is not collected as notified, then the seller shall charge a non-recurring handling fee of 60 (sixty) euros per procedure and of 2,50 (two, fifty) euros per pallet and day.

Any and all shipments shall be insured by the seller only upon the express request and at the expense of the client against theft, breakage, transportation, fire, and water damages, and/or against any other insurable risks.

The seller shall have the right to fall short of and/or exceed by 5 (five) percent any and all weights and/or quantities which have been agreed upon.  The original weight and/or quantity upon dispatch and/or the original tare shall be exclusively valid and binding.  In case of any dissent and/or disagreement on the weight and/or quantity of the delivered goods, the weight and/or quantity which had been ascertained at the merchandise’s dispatch either by railroad officials or by the forwarding agent (shipping company) entrusted with the loading of the goods shall apply.  Apart from that, it shall be ruled and/or regulated in accordance with the usual practices common to the profession.

Insofar as any acceptance has to take place, then the object of purchase shall be considered to have been accepted if and to the extent that the delivery has been completed, the seller has informed the client about the completion of the delivery with reference to the deemed acceptance pursuant to § 5 (6) hereof and the seller has requested the client to accept the delivery, 12 (twelve) working days have elapsed since the date of delivery and/or the client has started to use the object of purchase (for example, if the client has put the delivered item into operation) and 6 (six) working days have elapsed since the date of delivery in such a case, and/or the client has failed to accept the delivered goods within this period of time for any reason other than a defect which has been reported by the client to the seller which makes the utilization of the object of purchase impossible and/or substantially impairs such utilization.

 

§ 6 Warranty

 

The warranty period shall be 1 (one) year after the date of delivery and/or, provided that any acceptance is necessary, after the date of acceptance.

The delivered goods must be thoroughly examined and inspected immediately upon their delivery to the client and/or to any third party commissioned by the client.  The delivered goods shall be deemed to be approved if and to the extent that the seller has not received a notification of any visible defects and/or of any other defects which were identifiable in the course of an immediate, careful inspection within 2 (two) working days following delivery of the delivery item, and/or otherwise within 2 (two) working days following discovery of such defect and/or the point in time at which the defect became apparent to the client during normal utilization of the delivered item without any closer inspection as stipulated in § 2 (2) Sentence 6 herein.  Upon request of the seller, the thus rejected delivery item has to be returned to the seller freight paid.  Should the notice of defects and/or rejection prove to be justified, then the seller shall reimburse the costs for the cheapest transportation route; this shall not apply insofar as these costs increase because the delivery item is located at a place other than the place of its proper and intendend utilization.

In case of any material defects to the delivered goods, the seller shall, at the seller’s own discretion and within a reasonable period of time, be initially obliged and entitled to rectify the respective defects and/or to replace the defective items.  In the event of any failure, i.e. due to impossibility, inacceptability, refusal, and/or unreasonable delay with regard to such rectification and/or replacement, the seller shall have the right to rescind the contract and/or make a reasonable reduction to the purchase price.

In the event that any defect is the fault of the seller, then the client shall be entitled to request compensation for damages under the prerequisites stipulated in § 8 herein.

In case of any defects in parts and/or components from any other manufacturers and/or suppliers, which the seller cannot remedy and/or remove for any reasons pertaining to licensing law and/or for any factual reasons, the seller shall, at the seller’s own discretion, assert the seller’s warranty claims against these manufacturers and/or suppliers at the expense of the client and/or assign these warranty claims to the client.  Any and all warranty claims for such defects arising from any other prerequisite and/or in accordance with these General Terms and Conditions against the seller shall only apply in the event that any legal enforcement of the above mentioned claims against the manufacturer and/or supplier was unsuccessful and/or is, for example due to insolvency and/or bankruptcy, pointless and/or unpromising.  For the duration of the legal dispute, any and all limitations of action for the respective warranty claims on part of the client against the seller shall be suspended and/or inhibited.

 

Any and all warranties shall not apply if and to the extent that the client modifies and/or alters the delivery item without the seller’s consent and/or if the client has the delivery item modified and/or altered by any third party, which makes the rectification of such defects impossible and/or unreasonably difficult.  In any case, the client shall be obliged to bear any and all additional costs of rectifying the defects resulting from such modification and/or alteration.

Any and all deliveries of used objects which have been individually agreed upon with the client shall be made under the exclusion of any and all warranties on part of the seller.

 

§ 7 Property Rights

 

In accordance with § 7 herein, the seller shall guarantee that the delivery item is free of any industrial property rights and/or copyrights held by any third parties.  Each contracting partner shall immediately inform the other contracting partner in writing in the event that any claims are asserted against this contracting partner due to any infringement and/or violation of such rights.

In the event that the delivery item infringes and/or violates any industrial property right and/or copyright of any third party, then the seller shall, at his or her own discretion and expense, modify and/or exchange the delivery item in such a way that it no longer infringes and/or violates the rights of any third parties but in such a way that the delivery item continues to fulfill its contractually agreed upon functions, and/or the seller shall procure the right of use for the client by concluding a license agreement.  If the seller does not succeed in doing so within a reasonable period of time, then the client shall be entitled to withdraw from the contract and/or to reasonably reduce the purchase price.  Any and all potential claims for damages on part of the client shall be subject to the restrictions set out in § 8 of these General Terms and Conditions.

In case of any infringements and/or violations of such rights which are due to any products of any other manufacturers delivered by the seller, the seller shall, at the seller’s own discretion and at the client’s expense, assert the seller’s claims against such manufacturers and/or preliminary suppliers and/or assign these claims to the client.  In such cases, any and all claims against the seller shall arise in accordance with § 7 hereof only if and to the extent that any legal enforcement of the above mentioned claims against the manufacturer and/or preliminary supplier was unsuccessful and/or is, for example due to insolvency and/or bankruptcy, pointless and/or unpromising.

 

§ 8 Liability for Damages in Case of Default

 

Any and all liabilities for damages on part of the seller which, irrespective of the legal basis, are in particular due to impossibility, default, defective and/or incorrect delivery, any breach and/or violation of the contract, any infringement of duties during contract negotiations, and/or any tort, insofar as it is a matter of fault in the respective case, shall be limited in accordance with § 8 hereof.

The seller shall not be held liable

in cases of simple negligence on part of the seller’s institutions and/or bodies, legal representatives, employees, and/or any other vicarious agents; in cases of gross negligence on part of the seller’s non-executive employees and/or any other vicarious agents,

if and to the extent that there is neither a breach nor an infringement of any essential contractual obligations.  Such essential contractual obligations shall include the duty to ensure punctual, flawless deliveries free of any defects as well as the duty to provide consultation, protection, and care which shall allow the client to use the delivery item in the contractually agreed manner and/or which have the purpose of protecting the life and limb of the client’s employees and/or of any third party and/or of the client’s property against any material damages.

 

Insofar as the seller is liable for any damages on the grounds of and in accordance with § 8 (2) herein, then this liability shall be limited to those damages which the seller foresaw at the time when the contract was concluded as a potential consequence of any contractual breach and/or violation, and/or which the seller, taking into consideration the circumstances the seller was aware of and/or which the seller should have known, should have foreseen by applying due diligence.  Any and all indirect damages and/or consequential damages which are due to any defaults and/or defects in the delivery item shall, in addition, only be eligible for compensation if and to the extent that such damages can be typically expected when using the delivery item for its intended purpose.

In the event of any liability due to simple negligence, the seller’s obligation to make compensations for any property damages and/or personal injuries shall be limited to EUR 1.000,00 (one thousand euros) per claim even if this claim results from the breach and/or violation of any essential contractual duty.

The aforementioned exclusions from and/or limitations to liability shall apply to the same extent to the benefit of the institutions and/or bodies, legal representatives, employees, and/or any other vicarious agents of the seller.

Insofar as the seller provides any technical information and/or acts as an advisor and/or if this information and/or advice is not part of the contractually agreed upon scope of services owed by the seller, then this shall be done free of charge and/or with the exclusion of any liability.

The limitations contained in § 8 hereof shall not apply to any and all liabilities on part of the seller for any and all claims resulting from wilfull misconduct, warranted characteristic features, damages to life, limb, and/or health, and/or for any and all claims under the Product Liability Act.

 

§ 9 Retention of Title

 

The seller reserves the right to retain title to the delivered goods until the purchase price for these goods has been paid in full.  For the duration of the retention of title, the buyer shall neither be permitted to sell and/or in any other way dispose of the ownership of these goods (hereinafter referred to as “reserved goods”).

In the event that any third parties – especially bailiffs, marshals, and/or judicial officers – demand access to such reserved goods, then the buyer shall inform them of the seller’s title thereto and/or immediately notify the seller so that the seller can enforce the seller’s right of ownership and title.

In the event that the buyer acts in breach and/or violation of the contract, in particular when it comes to defaults in payment, then the seller shall be entitled to demand the return of the reserved goods if and to the extent that the seller has rescinded the contract.

 

§ 10 Concluding Provisions

 

The place of jurisdiction for any and all potential legal disputes arising out of the business relationship between the seller and the client shall be, at the seller’s discretion, (Dresden) and/or the registered office of the client.  For any and all legal claims against the seller, (Dresden) shall be the exclusive place of jurisdiction.  Any and all mandatory statutory provisions concerning the exlusive place of jurisdiction shall remain unaffected by this regulation.

Any and all relationships between the seller and the client shall be solely governed by the law of the Federal Republic of Germany.  The United Nations Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980, shall not apply.

If any provisions have been inadvertently omitted from the contract and/or these General Terms and Conditions, then those legally enforceable regulations shall be deemed to be agreed upon which the contracting parties would have agreed to with regard to the economic objectives of the contract and/or the purpose of these General Terms and Conditions, had they been aware of these omitted provisons.

 

 

Updated:  September 05, 2014