I. General
All our deliveries and services to entrepreneurs are based exclusively on our following terms and conditions. The customer’s terms and conditions do not apply even if we do not expressly contradict them and still carry out the delivery. Deviations and additions are only effective with our express written confirmation, these apply only to the transaction for which they were made. In the context of ongoing business relationships, the following terms and conditions shall apply to future contracts even if no express reference is made to their validity in the future.
II. Offer, Conclusion of Contract
1. Our offers are always subject to change.
2. After the customer has placed an order, the contract is concluded by our written order confirmation. Information provided before the order is placed in the context of order processing, in particular with regard to performance, consumption or other individual data, is only binding as agreements on the quality of our services if it is confirmed as binding by us with the order confirmation or in writing afterwards.
III. Participation of the Purchaser
1. Fulfilment in accordance with the contract requires that the customer fully complies with its obligations to cooperate, provide information, advise as well as duties of care and protection.
2. The customer therefore undertakes, among other things, to answer all queries in a timely manner, to send the necessary or requested drawings and documents, to issue all necessary approvals and approvals and to participate in previously communicated dates for design discussions, preliminary acceptance and final acceptance.
3. The customer also undertakes to send test material in accordance with the specification in sufficient quantity and quantity. If tolerances occur in the test material, we must be provided with parts in the respective upper and lower tolerance ranges. Only for these parts provided to us can a perfect function be guaranteed.
IV. Prices
1. Our prices are ex-works excluding packaging (duty unpaid for foreign deliveries).
2. Unless otherwise agreed, payment is due immediately.
3. If, between the conclusion of the contract and delivery, unforeseen increases in material, wage or
transport costs, taxes or duties, we are entitled to make a price adjustment in accordance with these factors if delivery is not to be made within four months of conclusion of the contract.
4. If the customer makes changes after the conclusion of the contract, we can adjust the prices at any time according to the additional costs caused by the change.
V. Terms of payment, set-off
1. If contractually agreed payment deadlines are exceeded, we are entitled to demand a lump-sum claim for damages in the amount of 8% above the respective base interest rate based on the order value without proof of damage. We reserve the right to assert further damages. The customer is allowed to prove that damage did not occur at all or is significantly lower than the lump sum.
2. The payment deadline is only met if the payment is credited to our account within the deadline and we can freely dispose of it.
3. The Client may only offset undisputed or legally established claims or withhold payments on account of such claims, unless there is a defect. In the case of the retention of payments, the claim must be held on the same
contractual relationship.
4. In the case of intra-Community deliveries, the customer is obliged to provide us with his tax ID number as well as to provide us with the other information necessary to check the tax exemption and to provide us with the documents necessary to prove the tax exemption.
. If the customer fails to comply with these obligations in time, we will not treat the delivery as tax-exempt.
5. We are then entitled to charge and demand the applicable VAT additionally. Insofar as we have wrongly treated a delivery as tax-exempt due to incorrect information provided by the customer, the customer must indemnify us from the tax liability and bear all additional expenses.
VI. Delivery Dates and Deadlines
1. Delivery dates and deadlines specified in the order confirmation will be adhered to by us to the best of our ability; however, they only reflect the expected delivery time and not a fixed or calendar agreed delivery time.
2. Delivery periods shall not begin under any circumstances until all the details of the desired execution have been fully clarified. The execution of deliveries requires the timely response to all queries, the sending of the necessary or requested drawings and documents, the sending of test material in sufficient quantities, the granting of all necessary approvals and approvals and the participation in timely announced dates for design discussions with design approval, preliminary acceptance in our manufacturing plant and acceptances. If these requirements are not met for reasons beyond our control, the delivery time will be extended accordingly.
3. We are only obliged to execute and deliver if the customer has made all agreed and/or due payments. If payments, in particular agreed advance payments, are made late, all delivery periods will be extended accordingly.
4. The deadline or deadline shall be deemed to have been complied with if the consignment has been made available for dispatch or collected within the deadline or on the date.
5. We would like to point out that export regulations may apply in the event of a resale of the goods delivered. In addition, the goods supplied by the customer may also contain US components (goods, software, technology) and this circumstance may require compliance with US regulations. The buyer undertakes to ensure compliance with the national, European and US export regulations applicable to an export or re-export.
6. We accept no liability for delivery delays resulting from statutory or regulatory export restrictions or for the fact that a delivery cannot be made at all due to export restrictions. If a delivery cannot be carried out as contractually provided for because export regulations or orders from authorities prevent this, the customer can withdraw from the contract at any time. In this case, the customer is not obliged to pay compensation or damages, unless the customer was aware of the legal or official export obstacle to delivery before the conclusion of the contract or he was not aware of it due to gross negligence before the conclusion of the contract.
7. If the non-observance of a deadline or a deadline is due to force majeure, mobilization, war, riot, strike, lockout or other unforeseeable obstacles affecting our business, for which we are not responsible and which occurred or became known to us after the conclusion of the contract, the deadline or deadline shall be extended appropriately.
8. If a contractual penalty is agreed, its amount is limited to 5 % dnet contract amount. A reservation of contractual penalties must be expressly declared at the time of acceptance and in writing for the respective individual case. If a forfeited penalty is unreasonably high, we may request that it be reduced to a reasonable amount; Section 348 of the German Commercial Code does not apply.
VII. Place of Performance, Transfer of Risk, Insurance
1. Unless we have agreed otherwise, our manufacturing plant is the place of performance for our delivery obligation.
2. The shipment of our products is carried out from our manufacturing plant at the expense and risk of the customer. This also applies if we have also taken over the installation and/or commissioning.
3. We only take out insurance at the express written request of the customer, who bears the costs.
VIII. Retention of title
1. The goods delivered by us remain our property until all claims arising from the business relationship between us and the customer have been paid in full. This reservation of title also applies to bill payments.
2. The customer is not entitled to resell without our written consent until full payment has been made; he is not permitted to pledge or transfer title by way of security.
3. In the event of the combination of the reserved item with other items not belonging to us (installation), we are entitled to the resulting co-ownership share in the new item in the ratio of the contract value of the reserved item to the value of the other items at the time of the combination. If the customer acquires sole ownership of the new item, the contracting parties already agree that the customer grants us co-ownership of the new item in the ratio of the order value of the combined reserved item to the value of the other items. The customer is obliged to disclose the necessary documents to us at any time upon request in order to determine our co-ownership share. A free custody of the items in our co-ownership for us by the customer is already agreed.
4. In the case of payments made by cheque-bill of exchange, our rights of title and security remain unaffected and remain subject to this until our liability under bills of exchange or cheques has ended.
5. In the event of breach of contract by the customer, in particular in the event of default of payment with a claim arising from the business relationship, we may, without prejudice to our other rights, withdraw from the contract after setting a reasonable grace period and demand the return of the item.
6. The coverage limit is agreed at 120%. We are obliged to release the collateral to which we are entitled to the extent that the realizable value of our collateral exceeds the secured receivables by more than 20%. However, our retention of title to a delivered item shall always remain in place until our claim for payment for the delivery of this item has been fully satisfied.
IX. Acceptance
In the case of agreements that require acceptance under a contract for work and services, the following applies:
1. The customer is obliged to participate in the pre-acceptance of machines in our factory. A protocol is drawn up about the preliminary acceptance.
2. Acceptance at the customer’s premises must be carried out immediately after delivery.
3. The customer is obliged to certify acceptance after completion of commissioning.
4. Insignificant defects do not entitle the customer to refuse acceptance.
5. If no formal acceptance is required or carried out, the acceptance shall be deemed to have taken place at the latest upon the commencement of use by the Client.
6. Upon acceptance, the risk passes to the customer, insofar as he does not already bear it. The risk also passes to the customer at the latest if the customer is in default with the acceptance.
X. Inspection of incoming goods and notices of defects
1. The customer is obliged to inspect the goods immediately upon receipt to ensure that they comply with the specifications specified in the order and are free of defects. (§§ 377, 381 para. 2 HGB (commercial examination and notification obligation).
2. This must be made in writing.
XI. Warranty
1. The warranty period is
a.) in the case of purchase contracts, 12 months from handover,
b.) in the case of service contracts, 12 months from the date of provision of the service,
c.) in the case of contracts for work and services, 12 months from acceptance, but no longer than 15 months from delivery, provided that the customer is responsible for the delay in acceptance.
2. In the event of a notice of defects filed in due time, the customer may demand supplementary performance at our discretion (by remedying the defect or delivering a defect-free item). If two attempts at supplementary performance are unsuccessful (failed supplementary performance) or if we refuse to provide supplementary performance or if it is unreasonable, the customer may withdraw from the contract, reduce the purchase price or claim damages in accordance with these provisions.
3. No warranty is assumed for impairments of the delivery item due to natural wear and tear, in particular of wear parts, damage after the transfer of risk or improper handling (e.g. incorrect connection, the processing of parts whose dimensions exceed or fall below the specified tolerance limits, etc.).
4. A warranty for certain properties is only assumed if an express and written assurance has been given by us. No guarantee is given that the delivered item is suitable for the purposes of the customer.
5. Data on performance, consumption, etc. confirmed by us in writing at the time of conclusion of the contract are never independent warranty declarations within the meaning of § 443 BGB.
6. The customer is obliged to give us the necessary time and opportunity for subsequent performance. In the event of disruptions and failures, we will send personnel within a reasonable period of time. However, we cannot guarantee that staff are immediately available at all times.
7. Our liability expires if the customer himself or through a third party makes rework or changes to our delivery without our prior consent.
XII. Liability for damages or reimbursement of futile expenses
1. For claims by the customer for damages or reimbursement of futile expenses, we are not liable – regardless of the legal basis – for damages (including expenses) of the customer caused by slight negligence on the part of our organs, our legal representatives, our employees or our vicarious agents.
2. Insofar as we are liable for damages arising from direct and direct damages, the liability for all contractual, non-contractual and other claims for damages and reimbursement of expenses, regardless of their legal nature and regardless of the number of damage events, shall be limited to the amount typically foreseeable at the time of conclusion of the contract.
3. Our liability, regardless of the legal grounds, is excluded for all indirect and indirect damages, so-called consequential damages (such as lost profits, loss of production, recalls, etc.) in terms of reason and amount.
4. The exclusions or limitations of liability mentioned here do not apply a.) in the event of injury to life, limb or health, or b.) in the event of intent or gross negligence on our part, or c.) in the event of a breach of an essential contractual obligation incumbent on us, the fulfilment of which is essential for the proper execution of the contract and on the fulfilment of which the customer may therefore regularly rely, or d.) if we have fraudulently concealed a defect, or e.) insofar as we have a
warranty for the quality or durability, or f.) for claims under the Product Liability Act.
XIII. Assembly, commissioning, instruction
1. Assembly and service work and commissioning services as well as the instruction of the customer’s operating personnel are charged according to time and effort. Billing is based on our applicable billing rates. Working hours, waiting times, travel times, expenses for triggering, accommodation costs and necessary expenses for travel and transport are calculated. The material used as well as the other expenditure for the consumption of substances shall be charged according to the agreed prices, which, in the absence of an agreement, shall be charged at reasonable prices.
2. If assigned assembly personnel cannot work for reasons beyond our control, the waiting time will be calculated as working time. If, for reasons beyond our control, we have to carry out work at times or circumstances that deviate from the contractually required conditions, the customer must additionally compensate for the additional expenses caused by this. If the execution of work is desired at times or circumstances that require collectively agreed surcharges (also for overtime), we can
Calculate surcharges on our hourly billing rates in the amount of the percentages applicable to us in terms of tariffs. The instruction of operating personnel is charged additionally even if the installation is included in the price.
XIV. Documents, plans, safety regulations
1. The scope of delivery includes an operating manual and overview plans in accordance with EC 42/2006. We only provide further plans for remuneration on the basis of a separate agreement, which we are not obliged to conclude.
2. We can only provide operating instructions and documents for purchased parts to the extent that we receive them ourselves from our upstream suppliers. Insofar as we have committed ourselves to secrecy vis-à-vis our upstream supplier, we may:
no surrender can be demanded.
3. Deviations from safety standards, guidelines and recommendations are permitted in the execution of our products, provided that the same safety is provided in other ways.
XV. Secrecy
1. Unless otherwise agreed, all business or technical information made available by us remains our exclusive property and must be kept secret from third parties and used exclusively within the scope of the respective contractual purpose.
2. We reserve all rights to such information (including copyrights and the right to register industrial property rights, such as patents, utility models, etc.).
XVI. Replica
The customer undertakes to refrain from reproducing machines that have been specially planned by us for him and not to commission any third parties to rebuild such machines. In the event of a breach of this obligation, we may demand payment of a reasonable license fee from the customer – without prejudice to our other claims and rights.
XVII. Place of Performance, Place of Jurisdiction, Final Provisions
1. Amendments and additions to the contract must be made in writing in order to be effective. This also applies to the waiver of the written form requirement.
2. The place of performance for all liabilities arising from this contract, in particular for the payment of the purchase price, is our respective branch as shown below.
3. The parties hereby consent to the exclusive jurisdiction of the courts of our place of establishment for any dispute arising out of or in connection with this Agreement. However, we are also entitled to claim claims against the customer at his general
place of jurisdiction.
4. Should individual provisions of these Terms of Sale or the contract concluded on the basis thereof be or become invalid, this shall not affect the validity of the remaining provisions. If a partial clause is invalid, the validity of the residual clause remains unaffected if it is separable from the partial clause in terms of content, is otherwise understandable in itself and results in a remaining meaningful provision in the overall structure of the contract. The parties are obliged to replace invalid clauses with such provisions that come closest to the economic purpose of the invalid clause. This applies accordingly in the event of gaps.
5. The customer is informed and agrees that all data concerning him, including personal data within the meaning of the Data Protection Act, will be stored within the framework of our electronic data processing. The customer guarantees that the necessary consents of his employees have been obtained.
6. The law of the Federal Republic of Germany shall apply exclusively to all legal relationships arising out of and in connection with this Agreement, to the exclusion of the right of reference and the provisions of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
IWK Verpackungstechnik GmbH
Lorenzstraße 6
D-76297 Stutensee
Phone: +49 (0) 7244- 968- 0
E-mail: info@iwk.de
www.iwk.de
