General terms and Conditions of SmartPac Verpackungsmaschinen GmbH
I. Scope of application
(1) Our General terms and conditions of Delivery and Business below shall pply to business transactions with companies.
(2) Our deliveries, services and quotations are governed exclusively on the basis of the following conditions. Regulations to the contrary and deviating provisions of clients are herewith expressly disclaimed. This also applies in the event of delivery without reservation, fully aware of contrary or deviating conditions of the client. Deviations of our terms and conditions require our explicit written agreement.
(3) Our terms and conditions are also valid for future services and services within the limits of a permanent business relation, as far as we don’t confirm these to deviating provisions.
II. Quotations and conclusion of contract, written form
(1) Our offers are subject to change and not binding, unless otherwise stated.
(2) A contract with the client shall be formed only upon a written order confirmation. If performance is rendered without the client first receiving an order confirmation, the contract shall be formed upon the commencement of performance of the service or upon delivery. Our term of acceptance amounts 4 (four) weeks, counted from receipt of the order.
(3) Any amendment of a formed contract, including the subsequent financing of the supplied item by a financing company used by the client, is permitted only with our express agreement.
(4) Quality or durability guaranties, agreements upon quality or declarations of use of the supplied item, as well as supplements to an agreement which occur prior to our order confirmation, are valid in the case of doubt, only upon written confirmation by SmartPac Vermasckungsmaschinen GmbH. Agreements, as well as statements in our offers to quality or use of the supplied item are preceding against statements which are a result of our brochures, samples, demonstration machines, drawings, descriptions, price lists and other documents. Statements to physical properties of wrapping materials, especially to quality, thickness or dimensions, have to be regarded only as proposals, for which we don’t take any liability.
(1) Unless agreed otherwise in a specific case, prices shall be quoted „ex works“, excluding the costs for transport, dispatch, as well as the costs for placement, assembly, commissioning and training of operating personnel.
(2) Our prices shall be understood without turnover tax. This will be shown separately in the invoice in statutory amount at the date of invoice. SmartPac verpackungsmaschinen GmbH reserves the right to increase its prices if cost increases occur.
(3) If, in the course of order processing, there are unforeseeable, above-average price increases (measured against the long-term average inflationrate) by our upstream suppliers for materials and components, we shall be entitled to pass on the additional price to our customers. This shallexpressly also apply in the event that a fixed price was agreed in the contract. The price increase shall be documented to the customer in a comprehensive manner according to reason and scope.
IV. Terms of payment
(1) A payment shall be deemed made only if we may definitely dispose over the respective amount. In case of payment by cheque, payment shall be deemed made only after successful credit.
(2) Despite other regulations we are entitled to credit clients’ payments initially against its existing debits. In case of any already occurred costs and interests, we are entitled to credit the payment against the costs, followed by the interests and last against the main demand.
(3) We are not liable to accept cheques. A potential acceptance occurs always only undertaking to pay. Related expenses shall be at the expense of the client and are due instantly after invoicing. We accept no responsibility for timely presentation or protesting.
(4) Where the client has to issue a documentary letter of credit, the uniform guidelines and habits for documentary letters of credit are valid, revision 1993, ICC-publication no. 500.
(5) In case the client is default in payments, especially cashs a cheque or ceases payments or falls behind with undisputed claims for more than 14 days in spite of a reminder or, an unsuccessful execution against the client, we are entitled to declare the whole remaining debt as due for payment, even if we have accepted cheques. In this case, we are additionally entitled to ask for advance payment or security deposits regarding all contracts and after expiry without result of an adequate period of grace we are furthermore entitled to withdraw from all contracts and demand compensation instead of performance.
(6) Set-off is granted to the client only with counterclaims, which are not disputed, accepted or stated legally binding by us. The client is not entitled to retention because of counterclaims.
V. Delivery time
(1) Unless agreed otherwise, our stated delivery terms are considered only as approximate. We comply with these as far as possible.
(2) Delivery periods begin with the date of the written order confirmation, but not before all prerequisites to be provided by the client are present, especially not before procurement of documents, samples, films, approvals and releases to be provided by the client, as well as receipt of payment which is due prior to delivery.
(3) Delivery periods are deemed as fulfilled if the delivery item has left works before expiry, or if notice of readiness for dispatch has been given.
(4) Circumstances in business beyond our control, especially because of labor disputes, cases of force majeure, unforeseeable im- and export restrictions, shortage of necessary raw materials, disruptions of energy supply etc. both at us and at our suppliers extend the delivery period accordingly, as far as such obstacles have verifiably significant influence on the completion or delivery of purchased items. Previously mentioned circumstances are even beyond our control, if arising during a present delay. The client will be informed of begin and end of such obstacles in important cases earliest possible.
(5) Exceeding delivery periods because of reasons, for which we are accountable, we fall behind, if the client demands for delivery in writing with a grace period of minimum three weeks and if we exceed this period as well. In this case, the client is entitled to demand lump-sum damages for delayed performance in the amount of 0.5% of the value of delivery for every complete week of delay, however not exceeding a maximum of 10% of the value of delivery. Further claims of the client are excluded, unless one of the exceptional situations according to section X, passage (2) and (3) occur or in specific case a definite delivery period has been agreed on as main duty.
(6) If the client sets an appropriate additional grace period for service and performance, which has to be minimum 4 (four) weeks, after we fell already behind, the client is entitled to withdraw from the contract if the period of grace has expired without results, and for which we are accountable. The appointment of a date is legally superfluous by the requirements under statutory law §323 sec. 2 BGB.
(7) At our request and in adequate time, the client is obliged to declare whether he withdraws from contract, respectively demand damages instead of performance or insists in performance.
(8) If obstacles, as mentioned at passage (4), are not of temporary duration, but render our performance permanently impossible, we are entitled to withdraw from contract either completely or partially. There will be no claims for damages because of such withdrawal.
VI. Transfer of risk and dispatch
(1) The risk of being forced to pay despite loss or damage shall be transferred to the client, as soon as the shipment has been handed over to the person in charge of the transport or, as soon as the shipment has left our works for shipping. Even if we exceptionally have taken over additional performances, for instance shipping costs, delivery or placement. The same applies for partial deliveries.
(2) Is the shipment delayed because of reasons for which the client is accountable, the risk is transferred to the client by notice of readiness for dispatch. On customer’s request we are obliged to achieve these particular insurances which are demanded by the client.
(3) Upon customer’s request and cost, transport insurance will be concluded.
VI. Delay of acceptation
(1) If the client refuses acceptation after a grace period of minimum 4 (four) weeks, or previously expressly declares, not being willing to accept, we are entitled to withdraw from contract and demand damage instead of performance in the amount of 20% of the contract amount. Proof of minor loss is reserved to the client; proof of major loss is reserved to us.
(2) At delay of acceptation for more than two weeks, we are entitled to demand lump-sum damage for every week of delay of 0.25% of the value of delivery, however not exceeding a maximum of 10% of value of delivery. Proof of minor loss is reserved to the client; proof of major loss is reserved to us.
VII. Retention of title
(1) All delivered goods shall remain the property of SmartPac Verpackungsmaschinen GmbH until complete fulfillment of all liabilities of the business relation, including claims arising in future. In case of payments by cheque or bills of exchange our claim is deemed fulfilled, only if the respective amount has been finally credited and no recourse claims come into question.
(2) The client is obliged, especially at foreign deliveries, to issue all necessary statements, applications and take other measures which are necessary and appropriate to protect our ownership.
(3) The client is allowed to use delivered goods within the limits of normal business operations. He is obliged to keep the goods in proper condition and ensure safe and clean operation according to the specific rules and regulations of the country at which he is located. All necessary maintenance and repairs are at costs of the client. In case of damage of goods, the claims of compensation against the liable party are already handed over from the client to us.
(4) The client is only allowed reselling the at “retention of title” mentioned goods, when the following requirements are met:
a) We have expressly agreed in writing to the resell or already alienated the goods to the client for the purpose of resell.
b) The client is not in default with his payments to us.
c) The resell is made in ordinary course of business.
d) The assignment of the claim of the client of resell to us is allowed without limitation.
In case of resell, the client already hands over all claims and rights arising from resell to SmartPac Verpackungsmaschinen GmbH to the full extent.
As long as the client is not in default with his payments to us, he is entitled and obliged collecting the assigned claims within the limits of its orderly business operations. Our legal authority, collecting these claims ourselves, remains unaffected thereby. However, as long as the client meets its payment obligations, we will not collect these claims. Upon our request, the client is obliged to notify the debtor of the assignment and issue all documents as well as grant all information which are necessary for assertion of the claim.
In case the client collects claims which are assigned to us, without being entitled to, or turns into account in other manner, we are entitled to the collected amount, respectively the achieved revenues to the full extent.
(5) The client shall neither pledge nor assign by way of security objects which are property of SmartPac Verpackungsmaschinen GmbH, unless prior written agreement. He is obliged, immediately notifying us in writing in case of any execution by third parties and any other impairment of our rights.
(6) Upon behavior of the client contrary to the terms and conditions, especially in the event of default in payment or if bankruptcy proceedings involving the clients’ assets are opened or requested for opening, we are entitled but not obliged to withdrawing the delivered goods. The withdrawal of goods is not to be deemed as withdrawal from the contract, unless we expressly declare it in writing.
If the client fails to comply with our request of returning the goods to us, the client owes 5% of the purchase price of the goods per every started month of delay, plus the according turnover tax. Assertion of any further claim by us is herewith excluded.
(7) We undertake to release the securities in as far as their value does not exceed the claims to be secured by more than 20%. The choice of released securities is to us.
IX. Customer’s rights in case of defects, liability
(1) In case of defects, customer’s rights shall follow solely the following regulations. Any further claims of clients are hereby excluded.
(2) The client shall ensure applicability, dimensional accuracy and conformity with effective conditions of samples, models, drawings and other information provided by him, as well as not violating any property right. If this is not the case, the client has to compensate any additional expenditure to us. If exceptional climatic conditions exist at the place of use of the machine, for instance temperatures below 15°C or above 35°C, or relative humidity below 40% or over 90%, the client is obliged to indicate such conditions latest at placing the order. SmartPac Verpackungsmaschinen GmbH shall not be liable for any damage or defect based on wrong or missing statements.
(3) We shall not be liable for damages and defects based on unintended use, excessive wear, faulty or careless handling by the client or third parties (such as for instance excessive use, faulty assembly respectively putting into operation), unsuitable operating or packaging materials, exchanged materials, defective construction, unsuitable building ground, weather effects, chemical, electro-chemical or electrical influences (e.g. power imbalances), as long as such circumstances are not caused by us. This does not apply for reproducible software errors. Only irrelevant deviations from the owed condition, especially customary quantity and quality deviations shall not constitute a material defect.
(4) The client shall reprimand obvious defects within two weeks after handover in written form. For merchants are furthermore the statutory regulations of § 377 HGB within the framework of the resulting time periods of investigation and reprimand duties. These time periods are preclusive periods.
(5) For justified, orderly and timely reprimanded objections, for which the reason of defect already existed at the time of risk being transferred, we shall provide supplementary performance at our option either by remedying the defect or by delivery of a non-defective thing against refund of the defective item.
(6) We only advocate for freedom of the delivered goods of industrial property rights and copy-rights (in the following property rights) of third parties at the country of delivery. It shall not be deemed as defect if and in so far as the client is responsible for the property right violation or if client’s violation of property rights is caused by an application unforeseeable to us or by any change of the delivered goods by the client or by use together with goods not delivered by us. If a third party raises a justified claim against the client on the basis of property rights in connection with used deliveries made by us according to contract, the client is obliged to notify us immediately in written form and coordinate his defensive measures with us. In the event of justified violation of property rights we will either obtain a right of use or deviate our performance so that the property right is not being violated or by exchange or our performance (supplementary performance) at our option. The same applies for other defects of title.
(7) If we refuse supplementary performance or it fails or is not reasonable to the client, the client may withdraw from the contract or reduce the purchase price.
(8) The client may assert damage claims within the framework of statutory regulations, if a defect in the contract object has been fraudulently concealed or if we exceptionally have given a quality guarantee. Further claims because of defects of the delivered goods are excluded, unless one of the exceptions according to section X paragraph (2) and (3) is given.
(9) Damage claims become time-barred within 12 months as of the transfer of risk, as far as we are not liable because of intent. This limitation period is valid for all claims, especially for claims for compensation from consequential harm, related with possible defects.
(10) Client’s claims because of necessary expenses for the purpose of supplementary performance, especially shipping-, road-, labor- and material costs are excluded, as far as the expenses increase because the delivered goods have been transferred subsequently to another destination than the customer’s place of business, unless the transfer complies with the intended use.
X. Liability, compensation
(1) As long as nothing else arises from the general terms and conditions, claims for compensation of damages and claims for compensation of expenses of the client, regardless of the legal ground (in the following named only as “damage claims”) are herewith excluded. In particular we shall not be liable for loss of profit or other property damages of the client.
(2) The disclaimer of liability, paragraph (1) is not applicable for damages:
- from the violation of life, the body or health which are based on a deliberate or negligent breach of duty which we are responsible for
- for which we are mandatory liable according to the product liability law, or
- which are based on at least grossly negligent breach of duty by us or by our legal representatives or agents.
(3) The disclaimer of liability, paragraph (1) is furthermore not applicable for damages which are based on an at least negligent violation of a key contractual obligation (cardinal obligation) which we are responsible for, in so far as achievement of contract purpose is endangered by this violation. Such endangering in case of damages only exists for essential damages and earliest, when the requirements of section IX, paragraph (7) are given.
Our liability in the event of violation of a cardinal obligation is limited to foreseeable damage typical of the contract, unless there is intentional misconduct or gross negligence or if the damages are resulting at least of negligent injury of life, body or health.
(4) As far as our liability is excluded or limited, this also applies for personal liability of our employees, workers, representatives and agents.
XI. Applicable law, place of fulfilment, jurisdiction
(1) Solely German law is valid for the business relations and for the entire legal relations between us and the client. This also applies for foreign businesses. Applicability of foreign law is as well excluded, as application of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) For business dealings with merchants, legal entities under public law or special assets under public law, the jurisdiction is our registered office for all disputes, as well as for matters of bills of exchange and cheques.
This jurisdiction also applies, if the client has no domestic place of general jurisdiction. However, we shall moreover be entitled to sue the customer at the court of his registered office.
(3) As long as nothing else arises from the order confirmation, our registered office is place of fulfillment.
XII. Final clauses
(1) Should one or more provisions of these conditions be or become invalid, the other conditions remain entirely in effect. The invalid condition has to be replaced by a valid one, which achieves the economic purpose of itself as much as possible.
(2) Our terms and conditions shall apply until the completion of the business relationship.
(3) Please note that we save client’s data within the purpose of contract.
for deliveries with installation
I. Cost and risk
If packaging machines to be delivered by us shall be installed by us, execution of installation will be at cost and risk of the client. All expenses, even for overtime, night work, work on Sundays and holidays have to be reimbursed by the customer. This also applies for coming up travel and waiting time. Exceptions apply only if and insofar as a lump sum has been agreed on expressly and in writing.
II. Work conditions
The client has to take all measures necessary to protect people and property at the place of installation, as well as provide appropriate working conditions. The client has to support our installation personnel in execution at own cost.
III. Technical assistance of the client
The client is obliged to technical assistance, especially:
a) Preparation of all construction works, timely to ensure the installation works of the packaging machine/s can begin immediately after delivery without any delay. The foundation has to be fully dry and hardened and the area/s at which the machine/s will be installed have to be adequate secured from weather influences, well lightened and heated sufficiently.
b) Provision of dry, lightened and lockable room/s under supervision and guarding for storage of machine parts, materials, tools and others.
c) Provision of heating, lighting, operational force, including the necessary connections.
d) Provision of assistants (support teams and specialists such as for instance electricians) in quantities and time we consider as adequate.
e) Provision of devices necessary for the installation and consumables (e.g. packaging samples and packaging material)
f) Loading and transport of items which are necessary for the installation according to place of use and type of installation. In case the client does not fulfill his obligations, we are entitled but not obliged to carry out client’s actions in his place and at his cost. Furthermore, our legal rights and claims are unaffected.
IV. Installation period
(1) As far as an installation period has been expressly agreed on, its compliance requires the client has met all obligations for which he is responsible. The installation period shall be deemed as met if the packaging machine delivered by us is ready for operation by the period’s expiry.
(2) For any extension of the installation period as well as for our liability for delay, section V of our general terms and conditions applies with the limitation that the lump sum compensation amounts daily 2 % of the estimated installation costs and that the maximum compensation is limited to double of the estimated installation costs (section V, paragraph (5) of our general terms and conditions).
V. Indemnification of the client
If devices or tools provided by us get damaged or lost at transport or the place of installation without our fault, the client is obliged to compensate for these damages or losses. Damages on the base of normal wear shall be disregarded.
In addition, our general terms and conditions shall apply.