GENERAL CONDITIONS OF BUSINESSGCB General Conditions of Purchase
§ 1 Bases of the contract
1. These terms and conditions apply to all supply contracts accepted by MAD Recycling GmbH as Seller, also within the scope of ongoing business relations.
2. Orders are only binding after a written order confirmation by the Seller. This confirmation is exclusively decisive for the kind and the scope of the supply. Supplements or modifications by the Purchaser have only been validly agreed upon if they have been confirmed by the Seller in writing. The same applies to differing terms and conditions of the Purchaser; they only apply after a written approval by the Seller.
§ 2 Supply
1. If possible, recovered paper is supplied air dry. Supplies, the humidity of which does not exceed 10-12% at a normal relative humidity of 65% and a normal temperature of 20° Celsius, are normally considered as air dry. Deviations may result from the kind of the material or the type of the preceding utilisation and/or storage outdoors. The Seller does not charge additional weight due to humidity that is attributable to the weather on the loading day (rain, snow, hail).
2. Samples are to be considered as type samples (approximate patterns). Their quality is not binding for the supply.
3. Unless special agreements have been made, the joint grade directory of the Bundesverband Papierrohstoffe e. V. (~Federal Association Paper Raw Materials) and the Ausschuss Altpapier im Verband Deutscher Papierfabriken e. V. (Committee Recovered Papier in the Association of German Paper Factories) is decisive for the grade differentiation.
4. Conclusions apply to the contractually determined quantities. In case rough quantities have been agreed upon, the Seller may exceed or undershoot the concluded quantity by 10%, if special quantities have been agreed upon by 5% if this is necessary for the full capacity of the loading space.
5. If the supply has been defined as wagonload or truckload without weight indication, this means a supply of approximately 25 tons that may be exceeded to the maximal capacity of the wagon or truck. In conclusions according to wagonloads/truckloads, the number of wagons/trucks that has been agreed upon must be supplied and accepted.
6. If possible, the supply is effected in compressed bales that are stackable and tied up.
7. If several grades of recovered paper are supplied simultaneously, each grade is regarded as separate supply.
8. The risk passes to the Purchaser as soon as the goods have left the loading premises.
9. If a supply on call has been agreed upon without indicating a period of time, the goods must be called up within two months after conclusion of the contract at the latest.
10. If the Purchaser is behind schedule with the acceptance for more than 14 days, the Seller is, without being obliged to prove the amount of the damage, entitled to demand damages amounting to 10% of the agreed purchase price for the quantity with regard to which the Purchaser is behind schedule with the acceptance. The parties reserve the right to prove a considerably higher or a considerably lower damage. The Purchaser is moreover entitled, at his option, to rescind the contract.
11. In all cases of force majeure, the Seller is released from his obligation to perform as well as to comply with the agreed terms of delivery. He will inform the Purchaser about a situation according to sentence 1 that has occurred in due time.
12. As for the rest, only the provision in § 7 applies to the Seller’s default.
§ 3 Defects
1. The Purchaser must immediately give written notice of apparent defects, within 4 working days as of receipt of the goods, however, at the latest. In hidden defects, this period of time starts with the discovery of the defect. If the Seller does not receive a written notification of defects within this period of time, claims based on defects are excluded.
2. Complained goods must be kept available for a period of 14 days as of the receipt of the notification of defects at the Seller. Otherwise, claims under the notification of defects are excluded. Complained goods must be properly stored and insured. Upon the Seller’s request and against remuneration of the proven costs, the Purchaser is obliged to immediately return the goods or to initiate their immediate return respectively.
3. There are no claims based on defects if the defect is immaterial.
4. In an insufficient supply, the Seller may – at his option – offer unobjectionable goods against the return of the faulty goods or reduce the purchase price. If a substitute delivery fails or if it is not effected within an appropriate period of time, the Purchaser is generally only entitled to demand the reduction of the remuneration. The Purchaser is only entitled to rescind the contract if it can be proven that a reduction is of no objective interest to him.
5. The period of limitation is 12 months as of receipt of the goods. It ends in any case upon the introduction of the goods into the first stock preparation aggregate.
6. Any liability for damage resulting from materials that are detrimental to the production is excluded unless the Seller has accepted an explicit and unlimited guarantee for the purity.
7. For the rest, the Seller’s liability is exclusively regulated by § 7.
§ 4 Sales rules
1. Unless otherwise agreed, the price depends on the weight. It is quoted “ex terminal“ (wagon loading) or „free to the truck ex the Seller’s warehouse” (truck loading) unless any other explicit agreement has been made in writing. In purchases „free to the recipient“ or „free to station of destination“, the Purchaser is obliged to advance the freight, if necessary; no discount must be deducted for the amount of freight. The hire charge for the cover, the stamp for the consignment note and similar costs must be borne by the person obliged to pay the freight costs.
2. The goods that have been delivered in compressed bales are calculated gross for net. The packings that have not been settled with the gross weight must be returned within 6 weeks carriage paid and in an orderly condition.
3. Covers from the Seller must be returned within five days after receipt in an orderly condition. If this term is not kept, the Purchaser must refund the additional costs the Seller incurs. The Seller is entitled to charge hire charges for tarpaulins up to the amount of the hire charge for covers raised by Deutsche Bahn (German Railways). If hire covers are used, the fees charged by institutes lending out wagon covers are to be refunded.
4. In wagon loading, the weight is generally determined by Deutsche Bahn. In this weighing, the following terms apply:
The empty and loaded wagons are weighed by Deutsche Bahn. If in the weighing, there are already covers on the wagons, the weight of these covers is deducted. If the empty and loaded wagons have not been weighed in the station of departure, the weight that has so been determined in the station of destination applies. If only the loaded wagon has been weighed in the station of departure – deducting the tare mass of the vehicle noted on the wagon – the empty weight of the wagon can be determined in the station of destination or receipt. The weighing by Deutsche Bahn is equal to the weighing by qualified check weighmen on calibrated scales.
Unless otherwise agreed upon, the weighing must be carried out on public scales or by a sworn weigher if recovered paper and waste paper is shipped using motor vehicles.
If upon the loading of the truck, the latter has not been weighed on public scales or by a sworn weigher at the place of loading, the weight that has been determined at the recipient on public scales or by a sworn weigher by weighing the full and the empty truck applies.
In considerable weight differences, Purchaser and Seller are entitled to request an official revision, the costs of which must be borne by the defeated party. Weight deviations up to 0.5% are not taken into consideration.
5. In wagon loading, the Seller bears the weighing charges in the station of departure and in the station of destination if a weighing by Deutsche Bahn provided for in subsection 4 has not taken place. The Purchaser bears the weighing charges in the station of destination if he has initiated the reweighing. The connection fees are borne by the respective owner of the connection. The same applies analogously to shipments by truck.
§ 5 Terms of payment
1. The Purchaser will pay within 30 days as of the invoice date at the latest. To a delay or default in payment and the resulting consequences, the legal regulations apply. In case of cash payment within 14 days as of the invoice date, we grant a discount of 2% of the invoice amount minus freight costs and additional freight charges. Payment is considered to be made once we have access to the amount due. In the case of cheque payments, payment is considered to be made once the cheque amount is credited to our account. Payment per cheque and bank or postal cheque transfer is also considered as payment in due time, not, however, payment per bill of exchange. Note charges are for the account of the Buyer.
2. If the Purchaser’s financial circumstances deteriorate materially, the Seller is entitled to accelerate the maturity of all invoices, to request the immediate payment for all outstanding supplies and to request cash payment before dispatching the goods. The Purchaser is entitled to reject the request for premature payment by providing an appropriate security. If the requested payment is not effected and no security is provided either, the Purchaser is entitled to rescind the contract. The Seller is not obliged to effect any supplies under ongoing contracts before all invoice amounts including default interest have been paid in full. The legal rights to rescind a contract remain unaffected.
3. The Purchaser is only entitled to an offset if his counterclaims are undisputed or have been legally determined.
4. All costs for the payment are borne by the Purchaser.
§ 6 Retention of title
1. Until all receivables, also future ones, resulting from the business relation with the Seller have been paid for in full (in bills of exchange and cheques until their honouring), the supplied goods remain the property of the Seller. If the supplied goods are connected or mixed with other objects so that they cannot be separated any more, the Seller acquires the co-ownership in the new object, namely in proportion of the value of the supplied goods to the other mixed or connected objects. A possible processing of the goods is effected for the benefit of the Seller. If, by the processing, the Seller’s property in the supply is extinguished, the Purchaser will, already now, assign him the property in the objects resulting from the processing in order to secure all claims mentioned above.
2. The Purchaser is, at any time, however revocably, entitled to resell the supplied goods or the object resulting from the connection, mixing or processing within the scope of his ordinary business operation. Already now, he assigns the Seller all claims together with the ancillary rights to which he is entitled in connection with the resell. Until cancellation, he is entitled and obliged to collect the claims that have been assigned to the Seller.
3. Upon the Purchaser’s request, the Seller will release the securities to which he is entitled to an extent to which the realisable value of his securities exceeds the receivables to be secured by more than 20%.
4. Upon the Seller’s request, the Purchaser must inform him immediately to whom he has sold the goods and to which receivables, resulting from this resell, the Seller is consequently entitled. In case of a suspension of payments, the application for or the opening of insolvency proceedings or extra-judicial composition proceedings, the right to resell, use or install the retained goods as well as the authorisation to collect the assigned claims are extinguished. The same applies in case of a cheque or bill protest. In these cases, the Seller is entitled to collect his retained goods. If the Purchaser has connected or mixed the retained goods, the Seller is entitled – in consultation with the Purchaser – to separate his retained goods on the basis of the invoice documents. If the Purchaser does not take part in this separation, the Seller is entitled to complete it alone, calling in an expert. The assertion of the rights under the retention of title does not require the rescission of the contract. § 449 subsection 2 BGB (German Civil Code) does not apply.
§ 7 General liability
1. The Seller’s liability for which legal ground ever is excluded unless he has acted intentionally or grossly negligently. This does not apply if the life, the body or the health is injured. A breach of duty by the Seller is equal to that of his legal representative or his vicarious agent. The imperative liability like e.g. under the Product Liability Act or due to the infringement of a material contractual duty to perform remains unaffected. In case of a possible imperative liability due to the infringement of a material contractual duty to perform, the liability is limited to the contract-typical, reasonably foreseeable damage.
2. Except in the case of intention, the compensation is limited to the amount of the contract.
3. In case of other possible breaches of duty that are not the Seller’s fault and that are no defects in the performance, the Purchaser is entitled to rescind the contract after having set an appropriate respite according to the legal provisions. More far-reaching claims are excluded.
§ 8 Other provisions
1. Without the Seller’s written approval, the Purchaser is not entitled to assign claims resulting from contracts with the Seller to third parties.
2. Place of performance for the supply and for the payment is the registered office of the Seller.
3. The contract is subject to the Law of the Federal Republic of Germany, except for the conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
4. MAD Recycling GmbH will not take part in alternative dispute resolution procedures for consumer disputes and is not obliged to participate.