1 General Provisions
1.1 All service orders such as maintenance, repairs or servicing work (“Services”) fulfilled by the Customer Service of Sumitomo (SHI) Demag Plastics Machinery GmbH and its subsidiaries (“we”/”us”) shall be subject to these General Terms and Conditions of Customer Service (“GTC”).
1.2 The GTC 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.
1.3 The GTC also apply in their current version 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 GTC is available at www.sumitomo-shi-demag.eu/de/agb.html.
1.4 These GTC 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 our services without reservation in awareness of the customer’s GTC.
1.5 We point out for the avoidance of any doubt that individual agreements with the customer prevail over these GTC. 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.
1.6 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 GTC.
1.7 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 - also 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 The Service fees are agreed individually net of statutory value added tax.
3.2 Any Services that have not been agreed in advance and are delivered at the Customer’s request will be invoiced additionally in accordance with our current price list. The same rule applies to the service items that have not been explicitly mentioned in the cost estimate but are however necessary for the delivery of the agreed Services.
3.3 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 acceptance of the service concerned.
3.4 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.
3.5 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 deadline has been set (Article 321 of the 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.
3.6 We retain the title of ownership until payment has been made in full unless the installed accessories or spare parts are an essential part of the order subject matter.
4 Deadlines, Services
4.1 The Service delivery place and 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. Unless a delivery period has been agreed individually, the Services will be provided within two weeks of the contract date.
4.2 If the agreed delivery schedules and dates are culpably not complied with, the party in breach will be set a reasonable deadline for the performance; delay sanctions shall commence to apply without further notice after this deadline unless it is met.
4.3 If we delay delivery 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 is 0.5% for each completed calendar week of the delay, but not more than a total of 5% of the net fee (Service price) payable for the delayed performance. 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.
4.4 The foregoing shall be without prejudice to the customer’s rights under Section 8 of these GTC 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 subsequent performance).
4.5 If the customer delays acceptance, fails to cooperate or is in breach of the duty of cooperation, or if the performance 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 a significantly lower damage than the aforementioned lump-sum compensation.
4.6 No testing of the entire plant will be performed with the customer’s external components beyond the scope of the ordered Services.
In particular there will be no:
• Tests to check whether the entire plant is complete with its external components and whether the plant and its safety devices comply with the applicable regulations and the relevant state of the art;
• Separate electrical test in accordance with DGUV Regulation 3 after any modification/upgrade to the entire plant performed by us. (We do not offer or perform as part of our Services the periodic inspections required by the operator in accordance with DGUV Regulation 3).
5 The Customer’s Obligations to Cooperate
5.1 Breach of the obligations to cooperate detailed below in Clauses 5.3, 5.4 and 5.5 hereof may impair, delay or thwart the delivery of the Services. Therefore, the customer assumes fault-based liability to ensure that these cooperation obligations are fulfilled.
5.2 We reserve the right to assert statutory claims for breach of the obligation to provide cooperation support services pursuant to Clause 5.1 (in particular claims for damages, reimbursement for additional expenses, reasonable compensation, termination).
5.3 Conditions prerequisite to be ensured by the customer:
5.3.1 Installation site
The machine is intended for operation in a dry and well-ventilated confined space.
The ambient conditions to be ensured during storage if any and operation - such as e.g. cooling water/machine cooling, ambient air temperature, air humidity and site altitude - must be within the following value ranges as per EN60204-1 or comply with the value ranges specified in the operating manual for the machine.
Ambient air temperature
Minimal: +10°C (50°F).
Maximal: +40°C (104°F).
Additional measures are recommended for a very hot and for a cold environment.
EN60204-1(2007), Annex B.
Minimal: +15°C (59°F).
Maximal: +35°C (95°F).
The maximum permissible water pressure in the cooling water inlet is 6 bar.
To ensure the required cooling capacity, a pressure difference of ≥ 3 bar is required between the cooling water inlet and the cooling water outlet, depending on the work cycle.
Please always refer to the machine operating manual for machine-specific admissible values.
Air humidity (non-condensing!)
High relative humidity levels are only admissible at lower temperatures (e.g. 90% at 20°C)
Technical adjustments may be required in case of installation sites at altitudes of over 1000m (3300ft) above sea level.
5.3.2 The electromagnetic compatibility requirements must comply with the EC EMC Directive (2014/30/EU).
5.3.3 Hall floor
The floor unevenness may not exceed 8 mm in the entire machine installation area between all machine shoes.
5.3.4 Production hall
Before delivery and unloading of the individual machines/assembly units, the customer must ensure the following:
a) The production hall (i.e. the hall roof, side walls, gates, windows, hall lighting, heating) must be fully complete;
b) The width and height of the production hall gate must be sufficiently large for trucks;
c) The customer must have delivered all required instructions to our personnel;
d) There must be sufficient space for the machines/assembly units to be unloaded directly at the machine installation site;
e) Sufficient accessibility from all sides must be ensured to enable assembly work on the machine;
f) Operational cranes and lifting equipment with operating personnel (an overhead crane, a truck-mounted crane, a mast, etc.) and lifting ropes must be available with sufficient load-bearing capacity;
g) Power supply must be available;
h) Connected power capacity must be available according to the circuit diagram;
i) Cooling water connection and compressed air supply must be available;
j) Forklift trucks must be available (if necessary, our personnel should also have a possibility to use them);
k) All main connections must be ready for the machine;
l) In the case of indoor assembly, the structure shall be weatherproof and heated in winter so that the assembly can proceed in normal working conditions and there is no impairment to the state of the material.
a) The customer must drill the floor anchoring and protective enclosures into the hall floor/foundation.
b) The customer must determine the exact installation position before placing the machine on the foundation and mark that position on the floor.
c) The foundation must comply with our specifications according to Clauses 5.3.3 and 5.5.
5.4 General obligations to cooperate
5.4.1 The customer must do everything required to ensure that the work can be started on time and performed without any hindrance or interruption.
5.4.2 The customer must ensure the conditions prerequisite set out in Clause 5.3 and perform all on-site and other preparatory work in a professional manner and in good time at own risk and expense.
5.4.3 Our personnel may not be summoned until all preparatory work has been completed and the conditions set out in Clause 5.4.2 have been ensured.
5.4.4 The customer must ensure that the necessary entry, exit, residence, work documents or other permits can be obtained for our personnel.
5.4.5 The customer must take the required accident prevention measures at own cost. In particular, the customer must explicitly point out to us where special consideration should be given to the customer and other contractors or relevant non-statutory regulations must be observed.
5.4.6 Occupational safety
a) When performing work, we will comply with the statutory regulations applicable at the assembly site. Additional non-statutory safety and other regulations at the assembly site will only be observed by us where they have been made known to us by the customer in the meaning of Clause 5.4.5 and explicitly acknowledged by us in writing.
m) For their part, the customer will comply with the statutory, official and trade association regulations and orders applicable to the assembly site, take measures where necessary to prevent accidents and to protect our personnel and property and in any case to comply with the contractor’s occupational safety and health protection measures made known to the customer.
n) We are entitled to refuse or to suspend working at any time if work safety has not been ensured.
5.4.7 The customer must procure an insurance policy for the materials to be assembled, which are stored on the customer’s premises, with insurance coverage against fire, water, theft, and damage by third parties. At our request, the customer must provide adequate proof of the existence of such insurance.
5.4.8 The customer must ensure that the transportation roads within the customer’s control, which are leading to the installation site, are in a usable condition, and the installation site itself is in a work-ready condition, and access to the installation site is not obstructed, and all necessary easements and rights of way have been procured.
5.5 The customer’s special obligations to cooperate
The following services are not part of our scope of delivery and services, but the customer must ensure at own risk and expense that they are rendered in good time:
5.5.1 Energy and equipment
• All power supply lines and safety devices (fittings, filters, valves, etc.) must be installed in the electrical power, compressed air, steam, water and heat agent supply and return lines from the customer’s central supply unit to the main connections of the machine;
• all electrical power stations and substations must be in place for high and low voltage supply;
• all units and equipment for emergency power supply must be in place.
5.5.2 Installation and foundations
• mounting of the machinery and protective enclosures;
• all supports and base frames to accommodate containers; pipelines and operating platforms; steel scaffolding, landings, stairs, ladders, railings; covers for stationary and mobile machine parts; wall and ceiling penetrations for platforms;
• all above-ground and underground cable and line ducts as well as rails and their mountings;
• all installations for air conditioning, ventilation, air vents, room heating and lighting.
5.5.3 Local safety regulations
• All protective and safety equipment in accordance with local regulations in respect of earthing, lightning protection, protective covers and fire extinguishing.
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 case of material defects and defects of title, unless otherwise stipulated below.
7.2 Clause 10.2 shall apply in addition in case of software defects.
7.3 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 Liability, Free Termination Right
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 Notwithstanding Article 634a para. 1 no. 1 and no. 3 of the BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from acceptance.
9.2 The above limitation periods under the law on contracts for work and services 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. However, 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 69a 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 The place of delivery for the Services to be rendered by us 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 GTC. 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 GTC 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 GTC 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 GTC 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.