General Terms and Conditions of Sale for new machines domestically and abroad (01.01.2020)
1. General Provisions
1.1 All deliveries and services of Sumitomo (SHI) Demag Plastics Machinery GmbH and its subsidiaries ("we" / "us") shall be subject to these General Terms and Conditions of Sale for new machines domestically and abroad ("GCS"). The GCS shall only apply to customers ("Purchaser") who are entrepreneurs within the meaning of section 14 German Civil Code (“Bürgerliches Gesetzbuch”, “BGB”), a legal entity under public law or special funds under public law.
1.2 The GCS in their respective version shall also apply as a framework agreement to future contracts with the Purchaser, without us having to refer to them again in each individual case; the current version can be downloaded from www.sumitomo-shi-demag.eu/gtc.html.
1.3 These GCS apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing, i.e. in written or text form (e.g. letter, e-mail, fax). This requirement of explicit consent shall apply in any case, for example even if we perform without reservation in full knowledge of the Purchaser's general terms and conditions.
1.4 For the avoidance of doubt, we point out that individual agreements with the Purchaser take precedence over these GCS. For the content of such an individual agreement a written contract or a written confirmation by us shall be decisive; the parties reserve the right to give counterevidence.
1.5 References to the applicability of legal regulations shall only have clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GCS.
1.6 We reserve property rights and copyrights to cost estimates, drawings and other documents; the Purchaser may only disclose them to third parties with our consent.
2. Conclusion of Contract
2.1 Our offers are subject to confirmation and are non-binding.
2.2 Unless otherwise agreed, a contract shall only be concluded when the order confirmation has been countersigned by the Purchaser.
3. Price, Payment and Retention of Title
3.1 Unless otherwise agreed, the prices for deliveries shall apply FCA (INCOTERMS 2020) from our delivery plants, excluding packaging, plus statutory value-added tax.
3.2 Unless otherwise agreed, payment shall be made to our account without any deduction within two (2) weeks of invoicing and commissioning or within two (2) weeks of invoicing and acceptance.
3.3 The Purchaser shall only be entitled to rights of set-off and rights of retention if its counterclaims have been recognized through a final court judgement, are ready for decision or are uncontested. In the event of defects in the delivery, the Purchaser's counterclaims shall remain unaffected.
3.4 We are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against prepayment. We declare a corresponding reservation at the latest within the order confirmation. If it becomes apparent after conclusion of the contract (e.g. by filing for the opening of insolvency proceedings) that our claim to the purchase price is at risk due to the purchaser's inability to perform, we shall be entitled in accordance with the statutory provisions to refuse performance and - if necessary after setting a deadline - to revoke the contract (section 321 German Civil Code). For contracts concerning the manufacture of non-fungible items (custom-made items), we can declare our revocation (“Rücktritt”) immediately; the statutory provisions concerning the dispensability of setting a deadline remain unaffected.
3.5 We retain title to the delivered goods until the purchase price has been paid in full (goods subject to retention of title).
3.6 The Purchaser is obliged to insure the goods subject to retention of title at its own expense against theft, breakage, fire, water and other damage for the duration of its obligations to us and to give evidence thereof to us upon request.
3.7 The Purchaser is obliged to maintain the goods subject to retention of title in perfect condition and to have any necessary repairs carried out immediately by specialist companies; it shall provide us with information about the goods subject to retention of title at all times, in particular also with regard to the respective location. With the exception of resale in the ordinary course of business in accordance with the subsequent clause 3.8, the Purchaser is only entitled to sell, pledge, assign as security, lease or otherwise transfer the goods subject to retention of title or change the location notified to us with our prior written consent. The Purchaser shall be obliged to inform us immediately of any danger to our title, in particular through seizure, confiscation or other dispositions relating to the delivered goods by third parties, and the Purchaser shall inform such third party immediately of our title.
3.8 The Purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business as long as the Purchaser is not in default of payment. For the event of such a resale, however, the Purchaser hereby assigns to us all claims arising from such resale. Irrespective of our authority to collect the assigned claim ourselves, the Purchaser shall remain authorized to collect the claim even after the assignment. We undertake not to collect the claim ourselves as long as and to the extent that the Purchaser fulfils its payment obligations, no application has been made for the opening of insolvency or similar proceedings and there is no suspension of payments.
3.9 In the event of breach of contract by the Purchaser, in particular default in payment, we shall be entitled to revoke the supply contract in accordance with the statutory provisions. We reserve the right to further legal claims.
3.10 Should a notarial recording or official registration of the retention of title be necessary, the Purchaser shall support us in this free of charge.
4. Delivery and Passing of Risk
Unless expressly agreed otherwise in writing between us and the Purchaser, deliveries and passing of risk shall take place FCA (INCOTERMS 2020) from our delivery plants or from another named place of delivery. If an acceptance has been agreed, this shall be decisive for the passing of risk. In all other respects, the statutory provisions of the law governing contracts to produce a work (“Werkvertragsrecht”) shall also apply mutatis mutandis to an agreed acceptance. Any case of the Purchaser being in default of acceptance (“Annahmeverzug”) shall constitute the passing of risk in accordance with FCA or an acceptance, as the case may be.
5. Deadlines, Obstacles to Performance
5.1 Deadlines shall only be binding if all details of the order have been clarified in time in particular the provision of all documents and approvals to be procured by the Purchaser, the possible release of drawings and the punctual receipt of any agreed down payment as well as the punctual provision of any agreed payment security. A further prerequisite is the timely performance by the Purchaser of the preliminary construction and assembly work, in particular the provision of electricity, gas, water and necessary auxiliary personnel free of charge for us.
5.2 The delivery date will be agreed individually. Delivery dates are only binding if confirmed by us in writing. A fixed date transaction shall only be assumed if such has been expressly agreed.
5.3 If we are unable to comply with binding delivery date for reasons for which we are not responsible (non-availability of service), we shall inform the Purchaser thereof without undue delay and at the same time inform the Purchaser of the expected new delivery date. If the performance is also not possible within the new delivery period, we shall be entitled to revoke the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the Purchaser. The case of non-availability of the service in this sense shall include in particular the non-timely self-delivery by our supplier, provided that we have concluded a congruent cover transaction, neither we nor our supplier are at fault and/or we are not obliged to procure in the individual case.
5.4 The beginning of our default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a warning notice from the Purchaser shall be a prerequisite for default. If we are in default and the Purchaser suffers damage resulting thereof, the Purchaser may demand lump sum compensation for the damage caused by the default. The lump sum shall amount to 0.5% for each full calendar week of delay, but in the aggregate not more than a total of 5% of the net price (delivery value) of the goods subject to late delivery. We reserve the right to give evidence that the Purchaser has suffered no damage at all or only a considerably lower damage than the aforementioned lump sum.
5.5 In the event that the Purchaser is in default of acceptance, fails to cooperate or delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). The lump sum compensation shall amount to 0.5% of the net contract volume per full calendar week, however not exceeding 5% of the net contract volume, beginning with the delivery date or - in the absence of a delivery date - with the notification that the goods are ready for dispatch. We reserve the right to prove higher damages and to assert statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination); the lump sum shall in any case be credited against further monetary claims. The Purchaser shall be entitled to prove that we have incurred no damage at all or only considerably less damage than the above lump sum.
5.6 Further claims arising from default in delivery shall be governed exclusively by clause 8 of these provisions. The rights of the Purchaser according to clause 8 of these GCS and our statutory rights, in particular in the event of exclusion of the duty of performance (e.g. due to impossibility or unreasonableness of performance and/or cure (“Nacherfüllung”)), shall remain unaffected.
6.1 If an acceptance has been agreed, it must be carried out on the acceptance date without undue delay, alternatively after our notification of readiness for acceptance.
6.2 The Purchaser may not refuse acceptance due to trivial defects, notwithstanding its rights under clause 7.
7.1 The statutory provisions shall apply to the Purchaser's rights in the event of material defects and legal defects (“Sach- und Rechtsmängel”), unless otherwise specified below.
7.2 The Purchaser's claims for defects presuppose that it has complied with its statutory obligations to inspect and give notice of defects (sections 377, 381 German Commercial Code (“Handelsgesetzbuch”, “HGB”)) by giving notice of the defect without undue delay in writing. If the Purchaser fails to properly inspect the goods and/or give notice of defects, our liability shall in accordance with the statutory provisions be excluded for such defects for which a notice of defect has not, or not in time or not properly been given.
7.3 Normal wear and tear of parts and core components does not constitute a defect. In particular, the following parts (wearing parts) are subject to wear and tear due to usage: all plasticizing components (screws, tips, locks, pressure rings, plasticizing cylinders, nozzle seals shut off nozzles, nozzles, nozzle holders adapter, cylinder heads and heaters heater bands), filter elements, seals, O-rings, scrapers, hydraulic - and water hoses, valve diaphragms, fuse inserts, temperature sensors, rotary couplings of rotary plates, bushes, bolts, couplings, brakes, clamping sets, timing belt.
In addition, the appendix "General Conditions for plasticizing components" applies, which can be viewed, printed and downloaded from the Internet at www.sumitomo-shi-demag.eu/gtc.html.
There are no warranty claims for damages which occur after transfer of risk due to unsuitable or improper use, unauthorized or faulty assembly or commissioning, subsequent modification works, natural wear and tear, negligent or faulty handling, maintenance or repair, violations of the operating instructions, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences for which we are not responsible, as well as extraordinary temperature and weather influences or other external influences which are not assumed according to the contract.
7.4 In the event of software defects, clause 10.2 shall additionally apply.
7.5 Defective delivery items will be repaired or taken back and replaced by defect-free delivery items, at our discretion. Defective services will be remedied or repeatedly performed, at our discretion. Our right to refuse cure under the statutory provisions remains unaffected.
We shall bear or reimburse the expenses necessary for the purpose of testing and cure (in particular transport, travel, labor and material costs as well as, if applicable, dismantling and installation costs) in accordance with the statutory provisions if a defect actually exists. Otherwise, we shall be entitled to demand reimbursement from the Purchaser for the costs incurred as a result of the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defectiveness was not apparent to the Purchaser.
7.6 The Purchaser bears the burden of proof with regard to the existence of a defect.
7.7 Replaced delivery items and parts shall be returned to us in accordance with the statutory provisions. For the purpose of cure, the Purchaser shall - after consultation with us - give us the necessary time and opportunity and allow us unhindered access to the delivery item; otherwise we shall be free from liability for the resulting consequences.
7.8 Only in urgent cases, e.g. when operational safety is endangered or to prevent disproportionately large, imminent damage, the Purchaser shall have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from us. We shall be informed without undue delay, if possible, beforehand, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a respective cure in accordance with the statutory provisions. If the self-remedy is carried out improperly, we shall be free from any liability for the resulting consequences.
7.9 If the cure has failed or a reasonable period to be set by the Purchaser for cure has expired without result or is dispensable according to the statutory provisions, the Purchaser may revoke the contract or reduce the purchase price. In the case of a trivial defect, however, there shall be no such right of revocation.
7.10 If the use of the delivery item leads to an infringement of industrial property rights or copyrights in the domestic market, we shall, at our expense, either procure for the Purchaser a right to further use or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to revoke the contract. Under the aforementioned prerequisites, we shall also be entitled to revoke the contract if we are not responsible for the infringement of property rights. In addition, we shall indemnify the Purchaser against claims under undisputed or final court judgements by the respective owners of the industrial property rights.
In the event of an infringement of industrial property rights or copyrights, our aforementioned obligations are conclusive, however, without prejudice to clause 8.2. These obligations shall only exist if
• the Purchaser informs us without undue delay of any infringement of industrial property rights or copyrights asserted and supports us to a reasonable extent in defending the asserted claims or enables us to carry out the above-mentioned modification measures;
• we have been reserved any and all rights to take defensive measures, including out-of-court regulations;
• the legal defect is not based on an instruction of the Purchaser,
• and the infringement of rights was not caused by the fact that the Purchaser has arbitrarily modified the delivery item and/or used it in a manner not in accordance with the contract.
7.11 Claims of the Purchaser for damages or reimbursement of futile expenses shall only exist in accordance with clause 8 even in the case of defects and shall otherwise be excluded.
7.12 All warranty claims shall be subject to the statute of limitations in clause 9.
8.1 Regarding fault-based claims we shall solely be liable for damages - irrespective of the legal basis - in cases of intent and gross negligence. In the case of simple negligence, we shall be liable, unless statutory provisions provide for a lower degree of liability in accordance with statutory provisions (e.g. for care in one’s own affairs), only in the following cases
a) for damages resulting from injury to life, body or health, and
b) for damages arising from the not inconsiderable breach of an essential contractual obligation (obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely on); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
8.2 The limitations of liability resulting from clause 8.1 shall also apply to breaches of obligation by or for the benefit of persons whose fault we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims under the German Product Liability Act („Produkthaftungsgesetz”, “ProdHaftG“).
8.3 Based upon a breach of duty which does not constitute a defect, the Purchaser may only revoke or terminate the contract if we are responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to sections 650, 648 German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
9. Statute of Limitation
9.1 Deviating from section 438 subsection 1 no. 3 German Civil Code and section 634a subsection 1 no. 1 and no. 3 German Civil Code, the general limitation period for claims arising from material defects and legal defects shall be from the time of commissioning, but not later than one (1) month after delivery ex works, if commissioning is delayed for reasons for which we are not responsible:
• 36 months for core components (replacement or repair of the following defective core components: all steel and cast parts for of machine assembly (i.e. machine bed including levelling elements), frame for safety guards, covers, knee level toggle (exclusive bushes and bolts), columns tie bars, clamping plates and support plates, hydraulic blocks (without valves), injection unit housing and fixtures supports)
• 24 months for parts (replacement or repair of all defective parts)
• 12 months for service (free service technician deployment (including travel and accommodation expenses) within the scope of rectification of defects) as well as other claims arising from material defects and legal defects.
9.2 Notwithstanding clause 9.1, the general limitation period for claims arising from material defects and legal defects shall, however, in no case be less than twelve (12) months from delivery or, if an acceptance has been agreed, from such acceptance.
9.3 This shall also apply to contractual and non-contractual claims for damages by the Purchaser based on a defect in the goods, unless the application of the regular statutory limitation period (sections 195, 199 German Civil Code) would lead to a shorter limitation period in an individual case. However, the Purchaser's claims for damages under clause 8.1 and under the ProdHaftG shall be limited exclusively according to the statutory limitation periods.
10. Software Usage, Software Defects
10.1 Insofar as the scope of delivery includes software, the Purchaser is granted a non-exclusive right to use the delivered software and the accompanying documentation. The software is provided for use with respective delivery item. Use of the software on more than one system is prohibited. The Purchaser may duplicate, rework or translate the software, or convert the software from the object code to the source code, only within the scope that is legally permissible (sections 69a et seqq. German Copyright Act (“Urheberrechtsgesetz”, “UrhG”)). The Purchaser is prohibited to remove manufacturer data – in particular copyright information – or to alter such data without our prior express consent. All other rights to the software and the documentation, including copies, shall remain with us or with the software supplier. The granting of sub-licenses is prohibited.
10.2 The warranty claims and rights referred to in clause 7 shall not apply to software in the case of trivial deviations from the contractually agreed quality or the corresponding documentation and in the case of non-reproducible defects.
11. Final Provisions
11.1 Unless otherwise agreed, the place of performance for our deliveries shall be the place of our delivery plant. If we are also required to render services (e.g. assembly), the place of performance shall be the place where the services are to be rendered. For the Purchaser's payment obligation, the place of performance shall be at the recipient specified in our invoice.
11.2 The exclusive place of jurisdiction for all legal disputes arising from or in connection with the agreement referring to the GCS shall be Nuremberg (Germany). Mandatory statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
11.3 For these GCS and the contractual relationship between us and the Purchaser, the law of the Federal Republic of Germany shall apply with the exclusion of international uniform law (in particular the UN Convention on Contracts for the International Sale of Goods / CISG).
11.4 Should a provision of these GCS or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.