GTC

 

General Terms and Conditions

of the Papierfabrik Netstal AG,

Legally Represented by the Managing Director,

Industrie Kleinzaun, 8754 Netstal, Switzerland

 

1. Scope

2. Offer and Conclusion of Contracts

3. Production Related Quantity Tolerances

4. Grammage Tolerances

5. Chord Tolerance per Package

6. Deviations in Quality

7. Deviations in Other Properties, Custom Made Products

8. Warranty

9. Liability for Damages in Case of Default

10. Packaging

11. Pricing and Invoicing

12. Delivery and Delivery Time

13. Shipments

14. Retention of Title

15. Terms of Payment

16. Operational Disruptions

17. Place of Jurisdiction

 

1. Scope

These General Terms and Conditions shall apply to any and all papers of the Papierfabrik Netstal AG, hereinafter referred to as products. Any and all products shall be delivered under consideration of their material composition and/or standardized weights. Exempted shall be any and all special types having any grammages and/or any other properties which are determined by technological factors.

 

2. Offer and Conclusion of Contracts

(1) 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.

(2) 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 oralcommitments 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.

(3) 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.

(4) 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. Production Related Quantity Tolerances

- Products in quantities, grammages, and/or formats which are customary for the manufacturer: Under 6 tons minimum number of pallets + minimum delivery weight as agreed upon, 6 – 9 tons +/- 5 % (plus/minus five percent), 10 – 20 tons +/- 4 % (plus/minus four percent), Starting with 20 tons +/- 3 % (plus/minus three percent)

- For any and all custom made products and/or unusual grammages, the following shall apply: Minimum number of pallets + minimum delivery weight as agreed upon

4. Grammage Tolerances

According to the agreed to specification; otherwise, the applicable grammage tolerance is +/- 5 %

(plus/minus five percent).

5. Chord Tolerance per Package

The indicated number of chords per package unit may not vary by more than +/- 5 % (plus/minus five percent).

6. Deviations in Quality

Any and all smaller deviations in the strength, thickness, color, smoothness, etc. are reserved.

7. Deviations in Other Properties, Custom Made Products

For any and all other technical properties for which tolerances have not been specified above, the seller shall not be liable for any minor deviations insofar as the delivered merchandise is suitable for the specific use for which it was intended at the time when the order was placed. The buyer of any and all custom made products shall be obliged to accept the initially ordered quantity even if and when it exhibits minor deviations of up to 10 % (ten percent) from the ordered papers but is

suitable for the same specific use.

 

8. Warranty

(1) 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.

(2) 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 7 (seven) working days following delivery of the delivery item, and/or otherwise within 7 (seven) 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 intended utilization.

(3) 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.

(4) 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 § 9 herein.

(5) 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.

(6) 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.

(7) 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.

 

9. Liability for Damages in Case of Default

(1) 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 § 9 hereof.

(2) The seller shall not be held liable

a. 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,
b. 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.

(3) Insofar as the seller is liable for any damages on the grounds of and in accordance with § 9 (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.

(4) 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 CHF 1.000,00 (one thousand Swiss francs) per claim even if this claim results from the breach and/or violation of any essential contractual duty.

(5) 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.

10. Packaging

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 packagings 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.

11. Pricing and Invoicing

(1) For any and all customer specific productions of format papers, billing is usually done per 100 kg (one

hundred kilograms) net, whereby the wrapper of the package is considered part of the weight. When it

comes to the production of rolls, gross for net shall apply.

(2) Invoicing of any and all format productions shall be based on the effective weight. For any and all

overweight papers, only the overweight specified in § 3 shall be billed. Exempted herefrom are maximum

overweights of only 2 % (two percent) for natural and uncoated papers as well as coated papers in

formats, in weights of 60 g/m2

 and more. For them as well, the overweight tolerance of 5 % (five percent)

shall apply pursuant to § 3 hereof insofar as the customer provides specific packaging instructions

(exempted are any and all gummed, coated, and/or glued papers).

(3) Any and all changes and/or alterations to the prices and/or delivery conditions are reserved.

 

12. Delivery and Delivery Time

(1) Any and all deliveries shall be made ex works.

(2) 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.

(3) 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.

(4) 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.

(5) The seller shall only be entitled to any and all partial deliveries if and to the extent that

a. the client can use the partial delivery within the scope of the contractually intended purpose,

b. the delivery of the remainder of the ordered goods is safeguarded and assured, and/or

c. 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).

(6) 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 § 9 of these General Terms and Conditions.

(7) Domestic Deliveries

If not otherwise agreed upon, any and all domestic deliveries shall be made by truck free to the consignee’s premises (ground floor – incoming goods department). For any difficult unloading, a surcharge shall be levied. Any and all special deliveries and/or shipments shall be billed at cost. Any and all additional costs for express deliveries shall be invoiced. Insofar as the buyer does not pick up the merchandise after its completion and/or postpones its due delivery, then the seller shall be entitled to store the merchandise at the buyer’s expense and/or demand storage costs if the seller stores the merchandise in the seller’s own warehouse.

(8) Exports

For any and all exports, the shipping terms stipulated in the individual order confirmations shall apply.

(9) 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 80 (eighty) Swiss francs per procedure and of 2 (two) Swiss francs per pallet and day.

 

13. Shipments

Any and all shipments shall be at the risk of the buyer. Any and all transportation damages must be reported to the shipping company in writing upon receipt of the merchandise. For any and all transportation damages reported at a later date and time, no liability can be assumed.

14. Retention of Title

(1) The seller reserves the right to retain title to the delivered goods until the purchase price for these goodshas 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”).

(2) 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.

(3) 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.

15. Terms of Payment

Unless otherwise specified, 14 (fourteen) days net from the date of the invoice. Any and all fees and/or charges associated with the payment shall be borne by the buyer. If the due date has been exceeded, then interest on arrears shall be charged.

16. Operational Disruptions

Any and all operational disruptions of any kind and cause which impair and/or adversely affect the production as well as any and all transportation hindrances and/or lack of supply shall result in any and all deadlines to be extended and/or any and all due dates to be postponed by the duration of this operational hindrance and/or operational disruption. No claims for damages can be derived therefrom.

17. Place of Jurisdiction

For any and all claims, the place of performance and/or jurisdiction shall be the legal domicile of the seller. Swiss law shall apply.

 

Updated: January 24, 2014

 

LEGAL INFORMATION    GTC    KONOS GmbH