1. General Provisions
1.1 All deliveries of spare parts and services (including proposals, advice and other ancillary 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 the Supply of Spare Parts (“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 - 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 Unless otherwise agreed, the prices for our deliveries are understood EXW (INCOTERMS 2020) our delivering works, net of packaging, plus statutory VAT.
3.2 Assembly services are not included in the price and we will only deliver them if and insofar as they have been specially agreed, for a separate fee and on the terms and conditions specified in Section 10.
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 delivery or within two weeks of the invoice and acceptance where the concluded agreement covers acceptance.
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. Furthermore, the customer is only entitled to assert their rights of retention solely on the basis of counterclaims arising from the same contractual relationship. The foregoing shall be without prejudice to the customer’s counter-claiming rights in the event of deficient performance.
3.5 We may make – also within the framework of an ongoing business relationship - the entire delivery or any part thereof subject to advance payment. We will notify this reservation at the latest at the time of confirmation of the order concerned. 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.
3.6 We retain the title of ownership to the delivered items until they have been paid in full (Goods Subject to Retention of Title).
3.7 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.
3.8 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 3.9 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 risk 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.
3.9 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.
3.10 The retention of title extends to the products resulting from the processing, mixing or combining of our goods to the extent of their full value, whereby we are deemed to be the manufacturer. If the title of ownership held by any third party is retained in case of processing, mixing or combining our Goods Subject to Retention of Title with third party goods, we will become co-owners of the processed, mixed or combined goods pro rata to the invoiced values. In all other respects, the same rules apply to the resulting product as to the goods delivered subject to retention of title.
3.11 If the realisable value of the security collateral exceeds our claims by more than 10%, we will release the parts of collateral of our choice at the customer’s request.
3.12 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.
3.13 Where notarization or official registration of the retention of our title is required, the customer has to assist us with this matter free of charge.
4. Shipment and Passing of Risk
4.1 Unless otherwise explicitly agreed in writing between us and the customer, shipments and passing of risk will be EXW (INCOTERMS 2020) our shipping facility or another specified place of shipment. If acceptance has been agreed, the acceptance 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 EXW (INCOTERMS 2020) or acceptance.
4.2 Partial shipments are allowed with account of our interests and to an extent reasonable for the customer, in particular where the partial shipment is usable for the customer within the scope of the intended purpose of the contract, the shipment of the remaining ordered goods is ensured and the customer does not incur any significant extra expense or additional costs as a result.
5. Deadlines, Obstacles to performance
5.1 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. Unless a delivery period has been agreed individually, the delivery is to take place within two weeks of the contract date.
5.2 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.
5.3 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 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 7 hereof.
5.4 The foregoing shall be without prejudice to the customer’s rights under Section 7 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).
5.5 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, withdrawal); 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.
5.6 Clause 10 applies in addition in the event of agreed assembly.
6.1 The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title, unless otherwise stipulated below.
6.2 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. In the case of building materials and other goods intended for installation or other further processing, an inspection must be performed in any case directly before this processing. 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.
6.3 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 .
6.4 Claims for defects are not allowed for any damage which occurs after 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.
6.5 Clause 9.2 applies in addition in the event of software defects.
6.6 We will repair or take back defective delivery items and replace them with defect-free delivery items at own discretion. This is without prejudice to our right to refuse supplementary performance in accordance with the statutory provisions.
6.7 Supplementary performance does not include the removal of the defective item or its re-installation unless we were originally obliged to install it.
6.8 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.
6.9 After the passing of risk the burden of proof regarding the existence of a defect is with the customer.
6.10 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.
6.11 Replaced delivery items and parts have to 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.
6.12 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.
6.13 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 a trivial defect.
6.14 The customer’s claims for damages or wasted expenditures are admissible in case of defects solely in accordance with Section 7 and shall otherwise be excluded.
7.1 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
7.1.1 damage resulting from injury to life, limb or health, and
7.1.2 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.
7.2 The liability limitations under Clause 7.1 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.
7.3 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.
8. Claim Limitation Period
8.1 In deviation from Article 438 para. 1 no. 3 and Article 634a para1 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.
8.2 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 7.1 Sentence 1 and Sentence 2 para. 7.1.1 as well as under the Product Liability Act shall become time-barred solely in accordance with the statutory limitation periods.
9. Use of Software, Software Deficiencies
9.1 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.
9.2 The defect claims and rights referred to in Section 6 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.
10. The Customer’s Cooperation Duty in Case of Agreed Assembly
If assembly services has been agreed with us, the following terms and conditions apply in addition:
10.1 Breach of the obligations to cooperate detailed below in Clauses 10.3, 10.4 and 10.5 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.
10.2 We reserve the right to assert statutory claims and to exercise our rights under Clause 5.5 for breach of the obligation to provide cooperation support services pursuant to Clause 10.1 (in particular claims for damages, reimbursement for additional expenses, reasonable compensation, termination).
10.3 Conditions prerequisite to be ensured by the customer:
10.3.1 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.
Cooling water/Machine cooling
Minimal: +15°C (59°F). [Condensation protection]
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.
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.
10.3.2 The electromagnetic compatibility requirements must comply with the EC EMC Directive (2014/30/EU).
10.3.3 Hall floor
The floor unevenness may not exceed 8 mm in the entire machine installation area between all machine shoes.
10.3.4 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 10.3.3 and 10.5.2.
10.4 General cooperation duty
10.4.1 The customer must do everything required to ensure that the work can be started on time and performed without any hindrance or interruption.
10.4.2 The customer must ensure the conditions prerequisite set out in Clause 10.3 and perform all on-site and other preparatory work in a professional manner and in good time at own risk and expense.
10.4.3 Our personnel may not be summoned until all preparatory work has been completed and the conditions set out in Clause 10.4.2 have been ensured.
10.4.4 The customer must ensure that the necessary entry, exit, residence, work documents or other permits can be obtained for our personnel.
10.4.5 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.
10.4.6 Occupational safety
a) When performing work, we will comply with the statutory regulations applicable at the assembly site. Should the statutory provisions change between the conclusion of the contract and the execution of the work and should we have to render further services not covered by the agreed fee as result, we will become entitled to additional fees in this respect unless we have assumed fee-relating risks for such situations. Furthermore, in such situations we will become entitled to claim adjustments to the contractual deadlines. 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 10.4.5 and explicitly acknowledged by us in writing.
b) 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.
c) We are entitled to refuse or to suspend working at any time if work safety has not been ensured.
10.4.7 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.
10.4.8 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.
10.5 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:
10.5.1 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.
10.5.2 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.
10.5.3 Local safety regulations
• All protective and safety equipment in accordance with local regulations in respect of earthing, lightning protection, protective covers and fire extinguishing.
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.