Terms and Conditions of Sale of Georgia-Pacific Steinfurt GmbH
These Terms and Conditions of Sale apply to all offers, sales, deliveries, and services between Georgia-Pacific Steinfurt GmbH (“Seller”) and the Buyer during the entire period of their business relationship, even if reference to these terms and conditions is not repeated and explicitly made in subsequent contracts. However, if there is a separate written agreement between Seller and Buyer, the terms and conditions of such an agreement shall have priority in the event that they are inconsistent with the present terms and conditions only if the agreement contains an analogous priority rule.
- Payment Terms
- Absent an agreement between Buyer and Seller otherwise, payment for deliveries shall be paid net within 30 days of the invoice date. The invoice date must always be the same as the delivery date. The payment is deemed to have been paid in a timely manner only if Seller has the relevant funds available on the due date in the account stated by Seller.
- In the event of a payment default, default interest is due starting from the due date in the amount of 1.25% per month. Seller is authorized to prove that default damages are higher.
- Checks or foreign currency are accepted only if Seller has consented thereto in advance. Fees for checks or currency exchange shall be borne by Buyer.
- Advance Payment / Deposit
Seller has the right to execute the orders that were placed by Buyer only after an advance payment or a deposit within the sense of Art. 232 BGB (Bürgerliches Gesetzbuch [German Civil Code]) is provided, as long as there is material reason for an advance payment or a deposit. This is the case especially if Seller has well-founded evidence that Seller’s payment claim is endangered by Buyer’s financial situation. Such evidence may especially derive from orders placed earlier by Buyer and including but not limited to bad checks being issued by Buyer, protests in relation to foreign currency issued by Buyer, repeated payment delays by Buyer and if Seller established - after executing the contract -that Buyer’s financial situation at the time when the contract was signed did not warrant the Buyer’s creditworthiness, even though Seller exercised due care at the time when the contract was signed.
- Delivery Terms; Passage of Title and Risk
Absent the written agreement of Buyer and Seller otherwise, the delivery terms for shipments shall be FCA (free carrier) from Seller’s warehouse (as defined in the INCOTERMS 2010). Title and risk pass to Buyer when the delivery leaves Seller’s facility. Irrespective of differing provisions set forth in the INCOTERMS, Buyer agrees that Buyer or his representative is an importer of record and is labeled as the importer of record in all required documents, including but not limited to the entry form (CBP Form 3461) and the entry summary (CBP Form 7501).
- Seller’s Acceptance of Orders
All orders placed by Buyer are subject to acceptance by Seller. All orders placed by Buyer are subject to the terms and conditions that applied at the time when Seller accepted the Buyer’s order. Orders that do not originate from approved customers, that do not correspond to Seller’s current volume or pricing policy, or that contain terms which conflict with the present terms and conditions, are deemed to be rejected without this requiring an express notification to the originator. In the event of a shortage of goods, Seller reserves the right to divide up available goods among his customers at his own reasonable discretion.
- Inspection and Reporting Obligation
Art. 377 and 381 (2) of the HGB (Handeslgesetzbuch [German Commercial Code]) are applicable. Buyer must report to Seller any claim for observable defects in writing and without undue delay, but at least within seven (7) days of the date of delivery to Buyer’s facility. Any claim associated with damage incurred by the goods during transport must also be promptly submitted in writing to the transport company or forwarding agent. If a defect in the goods was not visible at the time of inspection and only becomes apparent later, then Buyer must notify Seller of the defect immediately after it is discovered, but at least within seven (7) days from the time it is detected. In this situation, it is expressly understood that Seller is not liable to Buyer for any defect in any goods that might have been caused by Buyer due to the improper storage of goods, or for defects that were discovered more than one (1) year after the date the goods were delivered to Buyer. If Buyer reports nonconforming goods, Buyer must give to Seller all labels associated with the alleged nonconforming goods.
- Controlling Terms
By placing an order, Buyer agrees that these terms and conditions have priority over the Buyer’s general terms and conditions. Differences or collateral agreements at the time of or after acceptance of the order must be confirmed in writing by both Buyer and Seller. Any obligations or agreements that differ from these terms and conditions, such as conditions included in the Buyer’s order, are rejected unless expressly accepted by Seller’s authorized representative and confirmed in writing. If Seller fails to object to these additional conditions, this in no way is to be construed as acceptance of additional conditions or a waiver of the provisions contained herein.
Notifications given under this agreement must be sent by electronic mail, fax, certified letter / letter with confirmation of receipt, or by an internationally recognized express courier.
- Force Majeure
- Seller is not liable if it becomes impossible to render services or if deliveries are late, as long as these circumstances were caused by an event of force majeure conditions or another significant event that is beyond Buyer’s reasonable control and was not foreseeable at the time when the contract was entered (e.g. any operational malfunctions, transport delays, legal labor disputes that affect Seller, shortage of energy or raw material, state attacks, or the inability of Seller’s contractual suppliers to deliver in a timely or correct manner or to deliver at all). Seller’s liability for negligence of his assistants, for accidents, and guarantees remains unaffected.
- If these kinds of events prevent Seller from delivering or rendering services, and if these obstacles are not merely of a temporary nature, Seller has the right to rescind the contract.
- In the event of obstacles that are of a temporary nature, the delivery and service deadlines shall be postponed as long as the obstacle continues to exist, plus a reasonable start-up period. If it cannot be reasonably expected of Buyer to accept a delayed delivery or service, then Buyer has the right to rescind the contract by means of an immediate termination notice in writing sent to Seller.
- If there are force majeure events or other significant events defined in clause 8.1 which prevent Seller from rendering service, Seller is not obligated to render service by purchasing the sales item or the raw materials from another source, unless one of the exceptions listed in the last sentence of clause 8.1 applies.
- Warranties and Liability Exclusions
- Absent an agreement between the parties otherwise, Seller’s warranty is limited to compliance with product specifications of Seller and other contractual obligations. Seller emphatically excludes any liability for procurement and transport risks, for damages that result from improper handling and storage, use and/or processing of goods by Buyer, as long as Seller has not become liable for negligence. Buyer’s right that services be rendered remains unaffected.
- Assurances made with regard to the composition and performance of the goods are considered to be reliable. However, Seller does not assume any express or implicit warranty of any kind at all for such information or goods. Seller only promises that the goods are indisputably his property and that the goods, considering technically permitted tolerances, correspond to the current specifications at the time of delivery.
- Seller’s liability for violation of the aforementioned guarantees and warranties, irrespective of their statutory, compensatory or contractual basis, is limited to the bounds set forth in clause 10.
- Product Claims and Liability
- Irrespective of the provisions set forth in clauses 10.3 and 10.4, warranty claims are excluded if and to the extent that they are filed more than 12 months after delivery of the goods or if Buyer has not complied with his inspection and reporting obligations set forth in clause 5. In the event of material defects, Buyer may reduce the purchase price (Art. 441 BGB) or rescind the contract (Art. 440 BGB) only if the defect is not merely negligible and if subsequent performance has failed. Buyer’s rights set forth in clause 10.3 and 10.4 remain unaffected hereby.
- To the extent commercially reasonable, Buyer must always correct possible damages that are caused by defects and support Seller when investigating and examining the defect. Seller must be given the opportunity to inspect the goods.
- In the event of damages that were not caused by Seller, Seller’s legal representatives, managers, or other assistants due to intentional acts or failure to act and due to gross negligence, Seller is liable only for non-performance of contractual obligations, the fulfillment of which is indispensable for orderly execution of the contract and in which the Buyer may reasonably trust (cardinal obligations), and only for damages that are typical of the contract and foreseeable at the time when the contract is entered.
- The above clause 10.3 does not apply to bodily injury, death, and harm to health, for violations of guarantees granted by Seller, or for claims filed under the Product Liability Act. In these cases, applicable law holds.
- Examination Results
Upon the request of Buyer, Seller shall provide examination results and a certificate of analysis for the products delivered by Seller.
- Separability of Shipments / Contingencies
Any shipment is deemed to be sold under a separate contract. In the event of default or any other claims based on poor performance, Seller is liable only for the delivery in question. This shall have no effect on any other deliveries.
- Taxes, VAT
- All prices agreed between Seller and Buyer are understood to be net. The applicable VAT or any other taxes and surcharges that are incurred after entering the contract shall be charged on top of the net amount. Buyer must pay these taxes and surcharges with the purchase price.
- Buyer is responsible only for the payment of VAT on products, if applicable. If Buyer is domiciled in a Member State of the European Union, then Buyer must send a reception confirmation to Seller within ten (10) work days after delivery. This reception confirmation must include all information that is required under applicable law to prove that the sale of Seller’s products to Buyer is exempt from VAT, and shall include (i) the name and address of Buyer, (ii) the quantity and trade name of the products, (iii) location and month of receipt of the product or the destination of the transport in the relevant Member State, (iv) the date when the confirmation is issued, and (v) the signature of Buyer (or a duly authorized representative). Upon request, Buyer must provide Seller with other information that Seller might need to reasonably prove exemption from VAT.
- Governing Law and Legal Jurisdiction
- The contractual relationship between Seller and Buyer is exclusively subject to German law. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- Place of performance for all claims that arise out of the business relationship or individual contracts or in connection therewith is the registered office of Seller.
- Legal jurisdiction for all disputes that arise out of Seller’s delivery and services or in connection therewith is - if desired by Seller and legally permissible - the registered office of Seller or Buyer’s general jurisdiction. This applies also to disputes about documents, foreign currency exchange, and checks.
- Final Provisions
- Amendments and supplements to these Terms and Conditions of Sale that are communicated to Buyer textually (e.g. by email) and which are valid for the agreed orders are deemed to be accepted if Buyer does not object to them within 14 days from the time the notification is received in textual form.
- Seller reserves the right to changes these Terms and Conditions at any time, at their own discretion. Seller shall put forth effort to notify his Buyers of any amendments to these terms and conditions. Irrespective of whether this notification is sent, however, any additional sale by Seller constitutes an obligation to comply with the amended terms and conditions. These Terms and Conditions should thus be regularly reviewed for amendments.
- Collateral agreements, guarantees, warranties and assurances, supplements, or Appendices to this contract must be confirmed by Seller in writing.
- If these Terms and Conditions have loopholes, then the legally valid provisions which the Parties would have agreed to based on the commercial purpose of the contract and the goal of these Terms and Conditions, had the Parties recognized the loopholes, are deemed to be agreed to fill in these loopholes.
- Compliance with Anti-Corruption Laws
- Buyer agrees to comply with all applicable laws, regulations, rules, and requirements on fighting corruption and bribery, including but not limited to the German Anti-Corruption Laws, the Foreign Corrupt Practices Act (“FCPA”) of the USA, the laws, regulations, rules, and requirements that apply in the country of Seller and Buyer as well as all other laws, regulations, rules, and requirements.
- Buyer warrants that he and all his owners, board members, managers, employees and other persons that act on his behalf in connection with business translations that include Seller or his products have not directly or indirectly committed any of the following acts and will not ever do so:
- issuing offers, assurances, approvals or provision of loans, monetary payments, valuables, return-services, advantages, or privileges of any kind to officers or representatives or brokers with the purpose of forwarding payments to officers with the goal of (i) influencing acts and decisions of such officers, (ii) tempting officers to act or refrain from acts that go against their legal obligations, (iii) obtaining disallowed advantages, (iv) tempting officers to use their influence to manipulate state actions or decisions, or (v) to show gratitude for officers’ actions or failure to act in connection with fulfilling their duties or functions in order to obtain or secure advantages in business or to arrange, secure or control a transaction with a natural or legal person; or
- issuing other offers, promises, approvals, or payments of unlawful bribes, kickbacks, loans or other payments that violate applicable law; notwithstanding applicable law, this prohibition also pertains to so-called “facilitation payments”. “Officers” are deemed to be appointed, elected, or honorary officers or professionals or other employees of national, regional, or local state agencies or public international organizations, political parties, party officials, and candidates for political offices in any country whatsoever. “State agency” means authorities, ministries, consulates, or other governmental institutions or services. This also includes companies or other legal persons that belong, in whole or in part, to state agencies or are controlled by them. Persons are also deemed to be officers if they pretend to be acting as private persons or if they perform their service without pay
- If Seller has reason to assume that Buyer is acting in breach of this clause 15.5i, then Buyer must collaborate in good faith to determine the extent of this violation. In this case, Seller has the right to cancel all business transactions, agreements, and collateral agreements with Buyer at Seller’s own discretion and, in this case, all financial obligations or commitments of Seller to Buyer are void.
- Buyer must indemnify and hold harmless Seller in relation to all damages, penalties, or other costs due to violations of this clause 15.5i, as long as Buyer has not acted negligently or with malicious intent.
The Parties agree that the binding version of this document, all records, documents, or notifications that are connected herewith shall be English. If you need a working copy of this document in German, please contact Seller’s representative who is responsible for you or Seller’s branch office.