General Terms and Conditions of Sale for New Machines Locally and Abroad
1. General Provisions
1.1 All deliveries and services of Sumitomo (SHI) Demag Plastics Machinery GmbH its subsidiaries (“we”/”us”) shall be subject to these General Terms and Conditions of Sale for New Machines Locally and Abroad (“GTCS”). The GTCS only apply to the customers who are an entrepreneur in the meaning of Article 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.
1.2 The GTCS apply in their current version also as a framework agreement for future contracts with the customer without us having to refer to them again in each individual case; the current version of the GTCS is available at www.sumitomo-shi-demag.eu/de/agb.html.
1.3 These GTCS apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the customer may only become part of the contract if and insofar as we have explicitly agreed to their validity in writing, i.e. in a written or textual form (e.g. in a letter, an email, a fax). This approval requirement shall apply in any case, for example even where we have delivered without reservation in awareness of the customer’s general terms and conditions.
1.4 We point out for the avoidance of any doubt that individual agreements with the customer prevail over these GTCS. A written contract or written confirmation by us shall be decisive for the content of such an individual agreement; the parties reserve the right to prove otherwise.
1.5 References to the applicability of statutory rules are only meant for the avoidance of any doubt. The statutory rules shall therefore apply even without any such reference unless they are directly amended or explicitly excluded by these GTCS.
1.6 We reserve the intellectual property rights and the copyright to cost estimates, drawings and other documents; the customer may only make them available to a third party with our consent.
2. Contract Conclusion
2.1 Our commercial offers are subject to change and non-binding. This also applies where we have made the customer available any catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents - including in electronic form.
2.2 In the absence of any agreement to the contrary, a contract shall only be deemed concluded after the customer countersigns the order confirmation.
3. Prices, Payments and Retention of Ownership
3.1 Unless otherwise agreed, the prices for our shipments are understood FCA (INCOTERMS 2020) our shipping facility, net of packaging, plus statutory VAT.
3.2 In the absence of a special agreement, payments are to be made to our account without any deductions within two weeks of the invoice and delivery (including commissioning if agreed) or within two weeks of the invoice and acceptance where the concluded agreement covers acceptance.
3.3 The customer only becomes entitled to offsetting and retention rights if the customer’s counterclaims are uncontested, ripe for adjudication or have become res judecata. The foregoing shall be without prejudice to the customer’s counter-claiming rights in the event of deficient performance.
3.4 We may make – also within the framework of an ongoing business relationship – the entire delivery or any part thereof subject to advance payment. Should it become apparent after the conclusion of the contract (e.g. because an action has been filed to initiate insolvency proceedings) that our fee claim is jeopardised by the customer’s inability to pay, we become entitled to refuse performance in accordance with the statutory provisions and to withdraw from the contract - if necessary, after a set deadline has been missed (Article 321 of the German Civil Code - BGB). In case of a contract for the manufacture of specific items (custom-made products), we may notify our withdrawal with immediate effect without prejudice for the statutory provisions that setting of a deadline is not needed.
3.5 We retain the title of ownership to the delivered items until they have been paid in full (Goods Subject to Retention of Title).
3.6 The customer is obliged to insure the Goods Subject to Retention of Title at own expense against theft, breakage, fire, water and other damage for the duration of the customer’s obligations towards us and to submit us evidence of this upon request.
3.7 The customer is obliged to maintain the Goods Subject to Retention of Title in perfect condition and to have any necessary repairs performed by specialist companies without delay; the customer must keep us informed at all times about the Goods Subject to Retention of Title and in particular about their location. Subject to resale in the ordinary course of business in accordance with Clause 3.8 below, the customer may only sell, pledge, assign as security, rent or otherwise transfer or change the Goods Subject to Retention of Title or change their location notified to us upon our prior written consent. The customer is obliged to notify us immediately of any threat to our property - in particular through seizure, confiscation or other disposition of the delivered items by third parties and to make our title of ownership known to such third parties.
3.8 The customer is entitled to resell and/or process the Goods Subject to Retention of Title in the ordinary course of business as long as the customer is not in default of payment. However, in such cases the customer hereby assigns to us all claims arising from such resale. Notwithstanding our authority to collect the assigned claim ourselves, the customer shall remain authorised to collect the claim even after the assignment. We undertake not to collect the claim ourselves as long and insofar as the customer meets their payment obligations, no application has been filed for the initiation of insolvency or similar proceedings and there has been no suspension in payments.
3.9 If the customer is in breach of contract and in particular if any payments are delayed, we become entitled to withdraw from the delivery contract in accordance with the statutory provisions. We reserve the right to assert further legal claims.
3.10 Where notarization or official registration of the retention of our title is required, the customer must assist us with this matter free of charge.
4. Shipment and Passing of Risk
Unless otherwise explicitly agreed in writing between us and the customer, shipments and the passing of risk will be FCA (INCOTERMS 2020) our shipping facility or another specified place of shipment. If acceptance has been agreed, the acceptance date is decisive for the passing of risk. In all other respects the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to the agreed acceptance. The delay of acceptance attributable to the customer shall be deemed equivalent to the passing of risk in accordance with FCA or acceptance.
5. Deadlines, Obstacles to performance
5.1 The deadlines only apply on condition that all details of the order have been clarified in good time, in particular the provision of all documents and approvals to be obtained by the customer, release of the drawings if applicable and timely receipt of the advance payment if agreed as well as the timely provision of the collateral if agreed to secure the payments. A further condition prerequisite is the timely provision by the customer of the preliminary construction and assembly services (in particular provision of electricity, gas, water and the required auxiliary personnel free of charge for us) as well as the timely discharge of the agreed duties to cooperate.
5.2 The delivery period will be agreed individually. Delivery periods are only binding where they have been confirmed by us in writing. A transaction implying delivery by a fixed date is only deemed concluded where this has been explicitly agreed.
5.3 Should we be unable to meet a binding delivery deadline for reasons not controllable by us (the service is unavailable), we will make this known to the customer without undue delay and at the same time notify the customer of the estimated new delivery deadline. If the service remains unavailable within the new delivery term, we become entitled to withdraw from the contract in whole or in part; we will refund without delay any consideration already paid by the customer. For the purposes of this clause, the service shall be deemed unavailable in particular if our supplier fails to deliver on time where we have concluded a congruent supply agreement, if neither we nor our suppliers are at fault or if we are under no obligation to procure in the case concerned.
5.4 The occurrence of our delay in delivery is to be determined in accordance with the statutory provisions. However, a reminder notice from the customer is required in any case. If we are in delay and the customer suffers damages as a result, the customer may claim a lump-sum compensation for the damage caused by the delay. The lump-sum rate is 0.5% for each completed calendar week of the delay, but not more than a total of 5% of the net price (shipment value) of the goods delivered with a delay. We reserve the right to prove that the customer has not suffered any damage or that the damage is significantly less than the aforementioned lump-sum compensation. Further claims arising from delayed delivery are regulated exclusively in accordance with Section 8 hereof.
5.5 The foregoing shall be without prejudice to the customer’s rights under Section 8 of these GTCS and to our statutory rights, in particular in situations exempting from the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or supplementary performance).
5.6 If the customer delays acceptance or fails to perform an act or to fulfil the duty of cooperation, or if the delivery is delayed for other reasons attributable to the customer, we become entitled to claim compensation for the resulting damage including reimbursement for additional expenses (e.g. storage costs). The lump-sum compensation is 0.5% of the net contract value for each completed calendar week of delay, but not more than 5% of the net contract value in any case. We reserve the right to prove higher damages and to assert statutory claims (in particular to claim reimbursement for additional expenses, reasonable compensation, termination); the lump-sum compensation will be offset against further monetary claims in any case. The customer is entitled to prove that we have suffered no damage at all or only a significantly lower damage than the aforementioned lump-sum compensation.
6.1 Acceptance must be carried out without undue delay on the acceptance date, alternatively after our notification of readiness for acceptance.
6.2 The customer may not refuse acceptance by reason of trivial defects, without prejudice to the customer’s rights under Section 7.
7.1 The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title, unless otherwise stipulated below.
7.2 The customer’s claims for defects are subject to the condition that the customer has complied with its statutory obligations to inspect the goods and to notify defects (Articles 377 and 381 of the German Commercial Code - HGB) and has notified the defect in writing without undue delay. If the customer fails to properly perform the inspection and/or notify defects, our liability for the defects not notified at all, or not notified in a timely manner, or not notified properly is excluded in accordance with the statutory provisions.
7.3 Ordinary wear and tear of parts and core components is not deemed to be a defect. In particular the following parts show signs of wear due to use (wearing parts): all plasticising parts (screws, tips, locks, pressure rings, plasticising cylinders, nozzle caps, nozzles, nozzle holder, cylinder heads and heating bands), filter elements, seals, O-rings, wipers, hydraulic and water hoses, valve diaphragms, fuse inserts, thermal sensors, rotary transmissions of rotary plates, bushes, bolts, couplings, brakes, clamping sets, tooth belts.
Furthermore, the appendix: Terms and Conditions for Plasticising Components shall apply; this appendix can be viewed, printed out and downloaded from the Internet at www.sumitomo-shi-demag.eu/de/agb.html.
7.4 Claims for defects are not allowed for any damage which occurs after the passing of risk as result of: unsuitable or improper use; unauthorised or faulty assembly or commissioning; subsequent modifications; natural wear and tear; negligent or faulty handling, servicing or maintenance; non-observance of the operating instructions; use of unsuitable operating supplies; defective construction work; unsuitable building site; chemical, electrochemical or electrical influences not attributable to us; extraordinary temperature and weather impacts; or other external impacts not assumed under the contract.
7.5 Clause 10.2 applies in addition in the event of software defects.
7.6 We will repair or take back defective delivery items and replace them with defect-free delivery items at own discretion. Defective services will be either rectified or provided again at our discretion. This is without prejudice to our right to refuse supplementary performance in accordance with the statutory provisions.
7.7 Supplementary performance does not include the removal of the defective item or its re-installation unless we were originally obliged to install it.
7.8 We will take over or reimburse the expenses required for the inspection and supplementary performance (in particular transportation, travel, labour and material costs and, if applicable, removal and installation costs) in accordance with the statutory provisions if a defect is actually in existence. Otherwise, we may claim from the customer reimbursement for the costs incurred as result of the unjustified requests to remedy the defect (in particular inspection and transportation costs), unless the lack of defectiveness was not recognisable to the customer.
7.9 After the passing of risk the burden of proof regarding the existence of a defect is with the customer.
7.10 We are entitled to make the supplementary performance owed by us subject to the customer paying the outstanding price. However, the customer is entitled to retain a part of the price which is in proportion to the defect.
7.11 Replaced delivery items and parts must be returned to us in accordance with the statutory provisions. For supplementary performance, the customer must give us the necessary time and opportunity - after consultation - and allow unobstructed access to the delivery item; we are released from liability for the resultant consequences otherwise.
7.12 The customer may only rectify the defect on their own or have it remedied by a third party and claim reimbursement of the necessary expenses from us solely in emergency situations, e.g. in case of jeopardised occupational safety or to prevent disproportionately large imminent damage. Such independent rectification must be notified to us without delay and possibly in advance. The right to independent rectification does not emerge in situations where we would be entitled to refuse the relevant supplementary performance in accordance with the statutory provisions. Where independent rectification has been performed improperly, we are released from the liability for the resultant consequences.
7.13 Where the supplementary performance has failed or a reasonable deadline set by the customer for the supplementary performance has expired without any success or is not necessary according to the statutory provisions, the customer may withdraw from the contract or claim a price reduction. No right of withdrawal emerges however in case of an trivial defect.
7.14 The customer’s claims for damages or wasted expenditures are admissible in case of defects solely in accordance with Section 8 and shall otherwise be excluded.
8.1 We may be held liable for damages - irrespective of the legal grounds for the liability - within the scope of our liability in tort in case of intent and gross negligence. In case of ordinary negligence, we may be held liable - subject to a milder standard of liability in accordance with statutory provisions (e.g. regarding proper diligence in administration of own affairs) - solely for
8.1.1 damage resulting from injury to life, limb or health, and
8.1.2 damages arising from breach of a material contractual obligation (obligation whose fulfilment is a prerequisite for proper performance under the contract and on whose fulfilment the party to the contract usually relies - and is entitled to rely); in this case, however, our liability shall be limited to compensation for the foreseeable and typical damage.
8.2 The liability limitations under Clause 8.1 also apply in case of breach of duty by or to the benefit of the parties for whose fault we are liable in accordance with statutory provisions. They do not apply where we have fraudulently concealed a defect or have guaranteed equipment quality, and for claims under the Product Liability Act.
8.3 The customer may terminate the contract for breach of duty that is not associated with a defect only in cases where that breach of duty is attributable to us. The customer’s right of free termination (in particular according to Articles 650 and 648 of the BGB) is excluded. The statutory requirements and legal consequences shall apply in all other respects.
9. Claim Limitation Period
9.1 In deviation from Article 438 para.1 no. 3 and Article 634a para.1 no. 1 and 3 of the BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery or from acceptance where acceptance has been agreed.
9.2 Where the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery or from acceptance in accordance with the statutory regulations (Article 438 para.1 no. 2 of the BGB and Article 634a para.1 no. 2 of the BGB), insofar as acceptance has been agreed. Other special statutory provisions on the limitation period (in particular, Article 438 para. 1 no. 1,71 para. 3 as well as Articles 444 and 445b of the BGB).
9.3 The above limitation periods shall also apply to the customer’s defect-based contractual and non-contractual claims for damages unless application of the regular statutory limitation period (Articles 195 and 199 of the BGB) would lead to a shorter limitation period in the case concerned. The customer’s claims for damages under Clause 8.1 Sentence 1 and Sentence 2 para. 8.1.1 as well as under the Product Liability Act shall become time-barred solely in accordance with the statutory limitation periods.
10. Use of Software, Software Deficiencies
10.1 Insofar as software is included in the scope of delivery, the customer is granted a non-exclusive right to use the delivered software including its documentation. The software is provided for use on the delivered item intended for this purpose. Use of such software on more than one system is prohibited. The customer may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (Articles 69(a) et seq. of the Copyright Act). The customer undertakes not to remove any of the manufacturer’s information (in particular, copyright notices) and not to change them without our prior explicit consent. All other rights to the software and the documentation, including copies thereof, shall remain with us or with the software supplier. No granting of sub-licences is permitted.
10.2 The defect claims and rights referred to in Section 7 do not apply to software in case of only trivial deviations from the contractually agreed quality or the accompanying documentation or in case of non-reproducible defects.
11. Concluding Provisions
11.1 Unless otherwise agreed, the place of performance for our deliveries is the delivering manufacturer’s address. Where we also render services (e.g. assembly), the place of performance is the place where the services are to be rendered. For the customer’s payment obligation, the place of performance shall be the payment institution specified in our invoice.
11.2 Nuremberg (Germany) is the exclusive place of jurisdiction for any and all legal disputes arising from or in connection with the agreement referring to the GTCS. However, we are also entitled in all cases to bring an action at the delivery place of the Services rendered by us in accordance with these GTCS or a prior individual agreement or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular on exclusive jurisdiction, remain unaffected.
11.3 These GTCS and the contractual relationship between us and the customer are governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law (in particular the UN Convention on Contracts for the International Sale of Goods/CISG).
11.4 If any provision of these GTCS or any provision within the scope of other agreements is found to be or becomes invalid, this will not affect the validity of all other provisions or agreements.