General Business Terms
§1 Miscellaneous/Scope
1. These business terms shall apply for all current and future business relationships between the contractual parties.
2. Consumers in accordance with these business terms are natural persons, who enter into a business relationship with Japan Pulp & Paper GmbH, without their professional activity being of a commercial or self-employed nature.
Entrepreneurs in accordance with these business terms are natural or legal entities or partnerships capable of holding rights, who enter into a business relationship with JAPAN PULP & PAPER GMBH, who thereby act in the performance of a commercial or self-employed professional activity.
Customers in accordance with these business terms are both consumers as well as entrepreneurs.
As JAPAN PULP & PAPER GMBH does not supply end consumers, i.e. consumers within the meaning of the now applicable law of obligations, there are no separate provisions for Consumers below. As a consequence, the afore-mentioned descriptions of the classification as Consumer, Entrepreneur and Customer serve exclusively for differentiating between the groups of persons stipulated under the new law of obligations.
3. Deviating, adverse or supplementary General Business Terms shall not, even if JAPAN PULP & PAPER GMBH has knowledge of them, become a part of the contract unless their validity is expressly approved in writing.
§2 Quotations and conclusion of contract
1. The quotations of JAPAN PULP & PAPER GMBH are subject to change. Declaration of acceptance, orders or other legally binding declarations require a written confirmation or confirmation by telex by JAPAN PULP & PAPER GMBH to be enforceable. This shall apply namely for supplements, amendments or ancillary agreements. The confirmation may be replaced by delivering the ordered goods.
2. Drawings, illustrations, measurements, weights or other data associated with the performance are only binding if this is expressly agreed. We reserve the right to undertake changes in form, colour and/or weight within what can be reasonably expected.
3. The sales representatives of JAPAN PULP & PAPER GMBH are not authorised to enter into ancillary agreements or to give verbal undertakings.
4. In the event the Consumer orders the goods by electronic means, JAPAN PULP & PAPER GMBH shall confirm the receipt of the order without undue delay. JAPAN PULP & PAPER GMBH is not obliged to do this in the case of a conclusion of contract with a company which undertakes electronic business transactions.
5. If the Customer orders the goods by electronic means, the contractual text will be saved by JAPAN PULP & PAPER GMBH and sent to the Customer by e-mail together with these General Business Terms, if requested.
§3 Prices
1. Unless stated otherwise, JAPAN PULP & PAPER GMBH shall be bound to the prices contained in their quotation for 30 days after their date. The prices stated in the order confirmation by JAPAN PULP & PAPER GMBH plus the applicable value-added tax shall be decisive. Additional deliveries and services shall be calculated separately.
2. Unless agreed otherwise, the prices shall be EXW warehouse including normal packaging.
3. No additional costs shall be incurred by the Customer when ordering by long-distance telecommunication systems.
§4 Term of delivery and performance
1. Delivery dates or delivery periods shall only be deemed as agreed if the agreement is made in writing.
2. JAPAN PULP & PAPER GMBH shall not be answerable for delays in delivery and delays in performance, even in the case of binding agreed deadlines or delivery dates, which are caused by force majeure or due to events, which significantly impede or render impossible delivery by the Seller (in particular strike, lockout, order by an authority). The same shall apply if these events occur at the level of JAPAN PULP & PAPER GMBH’s suppliers or their sub-suppliers. JAPAN PULP & PAPER GMBH is in this case entitled to postpone the delivery or the performance by the duration of the impediment plus a reasonable time for adaptation, or to withdraw, either in whole or in part, from the contract due to the yet unperformed part.
3. The conclusion of the contract shall be subject to the correct and punctual self-delivery by the suppliers of JAPAN PULP & PAPER GMBH. This shall only apply in case JAPAN PULP & PAPER GMBH is not answerable for the non-delivery, in particular in case of a congruent cover transaction with the supplier. The Customer shall be informed of the non-availability of the service without undue delay. The consideration will be reimbursed immediately.
4. In the event the impediment lasts for longer than three months, the Buyer shall, after granting a reasonable deadline, be entitled to withdraw from the contract with regard to the part which has not yet been fulfilled. Should the delivery period be extended or should JAPAN PULP & PAPER GMBH be released from its obligation, the Customer may not derive any claims for damages from this. JAPAN PULP & PAPER GMBH undertakes, however, to inform the Buyer of the occurrence of such events within ten days of gaining knowledge of such.
5. If JAPAN PULP & PAPER GMBH is answerable for not observing binding deadlines or dates confirmed in writing, or is in default, then the Buyer shall be entitled to claim damages to the tune of half a per cent for each full week of the default, in total however limited to five per cent of the net invoice value of the delivery affected by default. Claims of the Customer beyond this are excluded, unless the default is due to at least gross negligence or intent of JAPAN PULP & PAPER GMBH.
6. JAPAN PULP & PAPER GMBH is entitled to make partial deliveries at all times. The observance of the delivery and performance obligations of JAPAN PULP & PAPER GMBH is subject to the punctual and proper fulfilment of the obligations by the Customer.
7. In the event the Customer is in default of acceptance, JAPAN PULP & PAPER GMBH is entitled to demand compensation for the incurred losses.
§5 Passing of risk and place of performance
1. If the Buyer is an Entrepreneur, the risk of accidental loss and accidental deterioration of the goods shall pass over to the Buyer with the handing over, in the case of purchase to destination with the delivery of the goods to the forwarding agent, the carrier or any other person chosen to perform the dispatch.
2. A default with the acceptance by the Buyer shall be equal to the handing over of the goods.
§6 Warranty
1. If the Buyer is an Entrepreneur, the Buyer shall examine the goods delivered for defects, correctness and completeness without undue delay after delivery. This shall in particular apply if the delivered goods are to be changed, treated, processed or resold.
2. If the Buyer is an Entrepreneur, JAPAN PULP & PAPER GMBH shall be entitled to assume warranty for the defects at its own discretion initially either by rectification of the defect or by substitute delivery.
3. In the event the subsequent performance fails, the Customer may in principle choose to demand a reduction of the remuneration (reduction) or cancellation of the contract (withdrawal). However, in case of an insignificant breach of the contract, in particular in case of insignificant defects, the Customer shall not be entitled to withdraw from the contract.
4. If the Buyer is an Entrepreneur, the Buyer must inform JAPAN PULP & PAPER GMBH of recognizable defects in writing within two weeks from receipt of the goods. Otherwise the assertion of warranty claims is excluded. The timely submission of the notification is sufficient for observing the deadline. However, the Entrepreneur bears the full burden of proof for all conditions of the claim, in particular for the defect itself, for the time at which the defect was discovered and for the timely notification of the defect.
5. Should the Customer choose to withdraw from the contract due to a defect in title or a defect in quality after the subsequent performance has failed, the Customer shall not be entitled to additionally claim damages for defects. Should the Customer choose damages after a failed subsequent performance, the goods shall remain at the Customer if this may reasonably be expected from the Customer. The damages shall be limited to the difference between purchase price and value of the defective goods. This shall not apply if JAPAN PULP & PAPER GMBH has withheld information regarding the breach of the contract with the intent to deceive.
6. The warranty period for Entrepreneurs shall be one year after delivery of the goods. The statute of limitations for consumers shall be two years after delivery of the goods. This shall not apply if the Customer has not notified JAPAN PULP & PAPER GMBH of the defect in time according to §6 clause 4.
7. If the Buyer is an Entrepreneur, in principle only the product specifications of the manufacturer shall be deemed as the agreed condition of the goods. Public statements, own praises or advertising by the manufacturer shall, in comparison, not represent descriptions of the condition of the goods under the contract.
8. The Customer does not receive guarantees within the meaning of the law by JAPAN PULP & PAPER GMBH. Guarantees made by the manufacturer shall remain unaffected by this.
§7 Limitations of liability
1. In case of a slightly negligent breach of obligations, JAPAN PULP & PAPER GMBH’s liability shall be limited to average direct damages which are foreseeable and typical for the contract according to the type of the goods. This shall also apply in the case of a slightly negligent breach of obligations by JAPAN PULP & PAPER GMBH’s legal representatives or vicarious agents.
2. JAPAN PULP & PAPER GMBH shall not be liable towards Entrepreneurs in case of slightly negligent breaches of non-essential contractual obligations.
3. The afore-mentioned limitations of liability shall not affect claims of the Customer based on product liability.
4. Claims for damages of the Customer due to a defect shall become statute-barred after one year following the delivery of the goods. This shall not apply if JAPAN PULP & PAPER GMBH has acted with intent to deceive.
§8 Reservation of title
1. JAPAN PULP & PAPER GMBH is granted the following securities by the Buyer until all accounts receivable of JAPAN PULP & PAPER GMBH (including all account receivable balances from open accounts) against the Buyer for any legal reason, either now or in the future, have been satisfied. JAPAN PULP & PAPER GMBH shall release these securities at its own discretion to the extent their value exceeds JAPAN PULP & PAPER GMBH’s accounts receivable by more than 20%.
2. The goods shall remain the property of JAPAN PULP & PAPER GMBH until all accounts receivable according to clause 1 have been paid. Should the Buyer be in default with its payment obligations towards JAPAN PULP & PAPER GMBH, or should the Buyer violate several other obligations under the framework agreement or the delivery contract, JAPAN PULP & PAPER GMBH shall be entitled to demand that the goods delivered with reservation of title be handed over and to pick up the goods at the Buyer’s. The Buyer irrevocably renounces the assertion of any rights to the property for this case.
3. The Buyer is entitled to process and sell the goods in the ordinary course of business as long as the Buyer is not in default. Pledges or transfers for the purpose of security are not permitted.
The Buyer assigns to JAPAN PULP & PAPER GMBH the accounts receivable (including all accounts receivable balances from open accounts) resulting from the resale or any other legal reason (insurance/tort) in connection with the goods delivered with reservation of title, already now and in full as security for the accounts receivable pursuant to clause 1.
4. JAPAN PULP & PAPER GMBH authorises the Buyer to collect the assigned accounts receivable in its own name. The authority to collect may only be revoked by JAPAN PULP & PAPER GMBH if the Buyer fails to fulfil its payment obligations.
In case third parties access the goods, the Buyer shall be obliged to indicate JAPAN PULP & PAPER GMBH’s right of ownership to the goods until they have been paid in full. In such case, the Buyer shall inform JAPAN PULP & PAPER GMBH without undue delay.
5. In case of a breach of contract of the Buyer – in particular in case of default of payment – JAPAN PULP & PAPER GMBH is entitled to take the goods back. Taking the goods back does not constitute a withdrawal from the contract.
§9 Secrecy
The Buyer is obliged to treat the information submitted by JAPAN PULP & PAPER GMBH in connection with orders confidentially.
§10 Final provisions
1. The law of the Federal Republic of Germany is applicable. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
2. If the Customer is a businessman, legal entity under public law or a special fund under public law, the exclusive venue for all disputes arising from this contract shall be the registered office of JAPAN PULP & PAPER GMBH, Düsseldorf. The same shall apply if the Customer has no general venue in the Federal Republic of Germany or if place of residence, registered office, or usual place of abode are not known at the time of the institution of legal proceedings.
3. Should individual provisions of the contract with the Customer, including these General Business Terms be or become, either in part or in whole, invalid or null and void, this shall have no effect on the validity of the remaining provisions. The provision which is, either in part or in whole, invalid or null and void should in this case by substituted by a provision which as far as possible fulfils the economic purpose of the invalid or null and void provision.
