GENERAL TERMS OF SALE AND DELIVERY (INLAND/ABROAD)
(according to the recommended conditions of the Verband Deutscher Maschinen- und Anlagenbau e.V. (registered association) (VDMA))
I. Offer, Conclusion of Contract and Content of Contract
1. All contracts concluded with us are based on the following conditions. They are accepted by the customer upon placing the order, but at the latest upon acceptance of the first delivery and are valid for the entire duration of the terms and conditions. Any deviating terms and conditions of purchase of the customer shall only apply with our written approval.
2. Our offers are always not-binding. The contract is only concluded with our written confirmation and according to its content or via delivery.
3. We reserve the right to make construction and form changes to the subject matter of the contract without prior notice during the delivery period, provided that the subject matter of the contract and its appearance are not unreasonably changed by this for the customer. In particular, technical changes, improvements to the latest state of the art in science and technology, improvements in design and material selection are reasonable.
4. We can only make changes to orders if the costs are borne by the customer.
5. Partial deliveries are permissible.
6. Assurances, additional agreements and modifications of the contract require the written form to be effective. These requirements cannot be waived.
II. Prices and payment
1. unless otherwise agreed in writing, the prices of PREWA “ex works” at the time of conclusion of the contract shall always apply and shall be subject to the applicable statutory value added tax as well as other taxes, duties, levies and charges.
2.PREWA reserves the right to change the prices accordingly if after conclusion of the contract cost reductions or cost increases occur, in particular due to collective bargaining agreements, changes in the prices of materials and energy or changes in transport costs, unless performance of the contract is to take place within four months after conclusion of the contract. Cost increases will be proven to the customer upon request.
3. unless otherwise agreed in writing, invoices are due for payment strictly net within 30 calendar days after delivery and receipt of the invoice. Payments must be made by bank transfer, unless otherwise agreed in writing.
4.the customer is automatically in default of payment at the latest 30 calendar days after the due date and receipt of the invoice, unless he is not responsible for the non-performance.
5.the customer is only entitled to set-off or retention, even in the event of a notification of defects, if his claims against PREWA have been legally established or are undisputed.
6.If, after conclusion of the contract, the financial circumstances of the customer deteriorate or change significantly so that the claim of PREWA for counter-performance is endangered or if such a situation already existed with the customer at the time of conclusion of the contract but only became known to PREWA subsequently, PREWA may refuse its own performance until the counter-performance is fulfilled. In such cases PREWA may set the customer a reasonable time limit for the rendering of the consideration or provision of security concurrently with the rendering of its own performance. If the consideration or security is not provided by the customer, PREWA shall be entitled to withdraw from the contract and, in case of continuing obligations, to terminate the contract.
III. Delivery time
1. The delivery time begins with the dispatch of the order confirmation, but not before the provision of the documents, approvals, releases to be procured by the customer as well as the receipt of an agreed advance payment.
2. The delivery deadline shall be deemed to have been met if the delivery item has left the factory or readiness for dispatch has been notified by the end of the delivery period and, if this is the supplier’s responsibility, the dispatch takes place immediately.
3. The delivery deadline shall be extended appropriately in the case of measures within the framework of industrial disputes, strikes and lock-outs, as well as in the case of the occurrence of significant, unforeseen obstacles which are beyond the supplier’s control, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery items. This shall also apply if these circumstances occur with subcontractors.
4. The labor disputes, strike and lockout, as well as the occurrence of essential, unforeseen obstacles which lie outside the will of the supplier, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item, are not to be represented by the supplier even if they arise during an already existing delay. § 287 sentence 2 BGB is excluded. In important cases, the supplier shall immediately inform the customer of the beginning and end of such hindrances.
5. If the customer suffers damage due to exceeding the delivery period, which is attributable to a fault of the supplier, he may, to the exclusion of further claims, demand compensation for delay. It shall amount to 0.5% for each full week of the delay, but in total not more than 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract because of the delay. This limitation of liability shall not apply in the event of intent or gross negligence on the part of the supplier’s executive bodies or executive employees or if compliance with the delivery period exceptionally constitutes a so-called essential contractual obligation. Furthermore, this limitation of liability shall not apply to damages due to the culpable injury of life, body and/or health.
6. If the dispatch is delayed on request of the customer, the costs incurred for storage shall be charged to the customer starting one month after notification of readiness for dispatch, in the case of storage in the supplier’s plant at least 0.5 % of the invoice amount for each month, unless the customer proves that no damage has been incurred at all or that the damage is substantially lower.
7. The supplier shall, however, be entitled to dispose of the delivery item elsewhere and to grant the customer a reasonably extended period after setting and after the fruitless expiry of a reasonable period.
8. The delivery period shall be suspended if the customer does not completely fulfil his contractual obligations – including, among other things, the timely provision of packaging material and contents.
IV Delivery, Dispatch, Transfer of Risk and Acceptance
1. We deliver carriage forward and uninsured from our plant.
2. The risk shall pass to the customer at the latest when the delivery parts are dispatched, even if partial deliveries are made and we have assumed other services, e.g. dispatch costs or delivery and installation. The shipment will be insured for transport on request of the customer at his own expense.
3. If the dispatch is delayed due to circumstances for which the purchaser is responsible, the risk will pass to the purchaser on the day of readiness for dispatch.
4. Delivered items must also be accepted by the purchaser if they show insignificant defects, without prejudice to his warranty rights in accordance with section X of these terms and conditions.
V Default of acceptance
If the customer does not accept the object of the contract in due time, we shall be authorized to grant him an appropriate additional period, after the expiry of which we shall be authorized to dispose of it elsewhere and to supply the customer within an appropriately extended period. This does not affect our rights to withdraw from the contract under the conditions of § 326 BGB (German Civil Code) or to claim damages for non-performance. If we demand damages for non-performance, we can demand 20% of the agreed price as compensation without proof, unless it can be proven that only a significantly lower damage has been incurred. We reserve the right to claim higher actual damages.
The packaging will be invoiced separately and will not be taken back.
VII Retention of title
1. The supplier retains the title to the delivery item until all payments arising from or in connection with the business relationship have been received and the supplier has been released from any exhibitor or endorser liability resulting from bills of exchange in connection with the business relationship. If the customer has acquired the delivery item for further sale, he shall only be authorized to dispose of the delivery item within the framework of proper business transactions that are regular for him. In this case, he hereby assigns all his future claims against his customer resulting from the resale to the supplier.
2. If the retention of title is not effective in a foreign country, if its law is applied, the customer must cooperate in all measures, all declarations required by the customer to provide the supplier with security equivalent to a retention of title.
3. the supplier has the right to insure the delivery item at the purchaser’s expense against theft, breakage, fire, water and other damage, unless the purchaser has demonstrably taken out such insurance himself.
4. The customer may neither pledge the delivery item nor assign it as security. The customer must inform the supplier immediately about seizures, confiscations or other dispositions to third parties.
5. In case of non-conforming behavior on the part of the customer, in particular default in payment, the supplier has the right to assert the retention of title with regard to the delivery item after prior warning. The customer is obliged to surrender the goods.
6. The assertion of the retention of title as well as the seizure of the delivery item by the supplier does not apply as withdrawal from the contract.
VIII Defects of the delivery, Warranty
The supplier is liable for defects in the delivery, including the absence of expressly warranted characteristics, to the exclusion of further claims, regardless of section IX, 4 as follows:
1. All those parts are to be repaired or replaced free of charge at the supplier’s discretion and subject to the supplier’s reasonable discretion which prove to be unusable or significantly impaired in their usability within 12 months of commissioning because of a circumstance occurring prior to the passing of risk – in particular due to faulty design, poor construction materials or defective workmanship. All those parts are to be repaired or replaced free of charge at the supplier’s discretion and subject to the Supplier’s reasonable discretion which prove to be unusable or significantly impaired in their usability within 12 months of commissioning because of a circumstance occurring prior to the passing of risk – in particular due to faulty design, poor construction materials or defective workmanship. The supplier must be notified immediately in writing of the discovery of such defects. Spare parts become the property of the supplier.
2. If dispatch, installation or commissioning are delayed without fault of the supplier, its liability will be time-barred at the latest 1 year after the passing of risk.
3. The limitation period for claims based on defects is one year, calculated from the beginning of the statutory limitation period. However, in the case of a building and an object which has been used for a building in accordance with its usual use and which has caused its defectiveness, the statutory periods shall also apply in the case of intention or fraud as well as in the cases of §§ 478, 479 BGB (German Civil Code).
4. In the case of contractually agreed multi-shift operation of a machine or plant, the warranty period is reduced to 6 months.
5. The supplier’s liability for third-party products depends on the customer’s prior unsuccessful recourse against the supplier of the third-party product.
6. The right of the customer to assert claims due to defects becomes statute-barred in all cases 6 months from the time of the timely complaint, but at the earliest upon expiry of the warranty period.
7. No warranty will be given for damage caused to the delivery item for the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent treatment, unsuitable operating materials, replacement materials, faulty construction work, unsuitable foundation soil, chemical, electrochemical, electrical and comparable influences, provided that they are not attributable to the fault of the supplier.
8. If a co-worker of the supplier has infringed any pre-contractual obligation due to slight negligence prior to the conclusion of the contract and if the customer has suffered damage as a result, the customer renounces the assertion of any claim for damages upon conclusion of the contract.
9. Each machine only performs its service if the original material (packaging material, packaging material and filling material; quality as sampled or approved on Prewa) is used within the permissible tolerances. The customer must provide the original material required for adjustment and testing free of charge to the supplier on his request, specifying the tolerances. For damages caused by the customer using other than the original material or the original material with other than the specified tolerances, no liability will be assumed.
10. No liability of any kind will be assumed for the return of less than the total quantity of the original material provided, for its damage or devaluation.
11. In order to carry out all repairs and replacement deliveries which the supplier deems necessary at his reasonable discretion, the customer shall, after consultation with the supplier, give the supplier the necessary time and opportunity, otherwise the supplier’s liability for the resulting consequences will be excluded. Only in urgent cases of danger to operational safety and to prevent disproportionately large damage, in which case the supplier is to be notified immediately, or if the supplier is in default with remedying the defect, the customer has the right to remedy the defect himself or through a third party and to demand reimbursement of the necessary costs from the supplier.
12. The supplier must bear the direct costs resulting from the repair, replacement delivery and installation of spare parts within the scope of the warranty – as far as the complaint turns out to be justified – the costs of the spare part including its dispatch as well as the costs of deinstallation and installation to be agreed in advance. Otherwise the customer will bear the costs.
13. The warranty period for the replacement part and the repair is three months but shall run at least until expiry of the original warranty period for the delivery item. The warranty period for the delivery item shall be extended by the duration of the business interruption caused by the improvement work.
14. No warranty will be given for parts subject to wear and tear in the event of the occurrence of a defect after the passing of risk resulting from use.
15. In particular, in the case of packaging machines, the supplier’s warranty shall also lapse if the installation and running in of packaging machines is not carried out by the supplier’s personnel – whereby these costs will be borne by the purchaser or if the function of the packaging machine or the condition of packaging material or filling material is adversely affected due to the special climatic or other local and operational conditions at the installation site.
IX Liability of the supplier, exclusion of compensation claims
Unless otherwise stipulated in these GTC (General Terms and Conditions), the supplier is exclusively liable as follows:
1. In the event of default, the section III, 5 shall apply.
2. Compensation claims based on slight negligence of any kind whatsoever against the supplier, its employees and vicarious agents are excluded to the extent legally possible. It does not matter whether they are described as such from breach of contract of obligations at the time of conclusion of the contract or as such from tort, also from the liability of the producer (due to construction, production and information errors, as well as errors in product observation). This also includes consequential damages and delay damages. It does not matter whether the damage occurs to the delivery item or elsewhere. However, there shall be no exclusion of liability in the event of culpable injury to human life, body and/or health for the resulting damage.
3. In the event of culpable breach of essential contractual obligations, liability will also be assumed for slight negligence on the part of an executive body or executive employee but limited to reasonably foreseeable damage typical of the contract. However, no limitation of liability takes place in the event of culpable injury to human life, body and/or health for the resulting damage.
4. This limitation of liability shall also apply if a simple vicarious agent has breached non-essential contractual obligations and thereby caused damage to the customer.
5. In cases of permissible limitation of liability due to slight negligence, the reasonably foreseeable damage typical for the contract may not exceed 5% of the value of the delivery quantity in question.
6. The liability based on the product liability law of the Federal Republic of Germany exists without limitation. This is also valid in the case of the absence of characteristics, which are exceptionally expressly assured, if the assurance was intended to protect the customer against damages, which did not occur on the delivery item itself.
7. Further compensation claims are excluded.
X Customer’s right to withdraw from the contract
1. The purchaser may withdraw from the contract if the entire performance becomes finally impossible for the supplier before the transfer of risk. The same shall apply in the event of the supplier’s inability to perform. If impossibility / incapacity concern essential contractual obligations, Clause VIII will apply. The customer may also withdraw from the contract if, in the case of an order for similar items, the execution of part of the delivery becomes impossible in terms of quantity and he has a corrected interest in refusing a partial delivery; if this is not the case, the customer may reduce the consideration accordingly.
2. If there is a delay in performance within the meaning of Section III of the Terms and Conditions of Delivery and the customer grants the supplier in default a reasonable period of grace with the express declaration that he will refuse acceptance of the performance after expiry of this period, and if the period of grace is not observed, the customer shall also be entitled to rescind the contract.
3. If the impossibility occurs during the delay in acceptance or through the fault of the purchaser, the latter shall remain obliged to pay consideration.
4. The customer shall also have a right of rescission if the repair or replacement of a defect for which the supplier is responsible within the meaning of the delivery conditions fails through his fault within a reasonable period of grace granted to him. The purchaser’s right of withdrawal shall also exist in the event of impossibility or permanent inability of the supplier to repair or replace the goods.
XI Right of the supplier to withdraw from the contract
1. In the event of unforeseen events within the meaning of Section III of the Terms and Conditions of Delivery, provided that they substantially change the economic significance or the content of the performance or have a considerable effect on the supplier’s company, and in the event of subsequent impossibility of performance, the contract will be adjusted in a reasonable way.
2. If an adjustment of the contract is not economically justifiable, the supplier has the right to withdraw from the contract completely or partially. The customer does not have any compensation claims due to such withdrawal.
3. If the supplier wishes to make use of the right of withdrawal, he must inform the purchaser of this immediately after becoming aware of the consequences of the event, even if an extension of the delivery period was initially agreed with the purchaser.
XII Place of fulfilment, place of jurisdiction, applicable law, further terms and conditions of business
1. The place of fulfilment for the delivery is the respective place of dispatch, for the payment Großen-Buseck.
2. The exclusive place of jurisdiction, also for the bill of exchange proceedings, the check proceedings and the documentary proceedings, is Gießen, regardless of the supplier’s right to appeal to the court generally competent for the purchaser’s registered office.
3. The legal relations between the supplier and the customer are exclusively defined by the German law excluding the UN Convention for the International Sale of Goods (CISG).
4. The delivery items are designed, manufactured and furnished in accordance with the statutory provisions applicable in the Federal Republic of Germany. If the customer wishes the delivery items to be furnished in accordance with provisions which deviate from the German provisions, he must notify this when placing the order or immediately thereafter. At the same time, he must send the provisions deviating from the German provisions in German or English. A reasonable adjustment of the price and the delivery dates, which becomes necessary due to the wish of the customer, remains reserved.
5. It is the responsibility of the foreign customer to take measures beyond the statutory provisions applicable in the Federal Republic of Germany which serve to protect the operating personnel and other persons from any chemical, biochemical, electrical, electromechanical, electroacoustic and similar influences of the machine, the packaging material, the packaging materials and the filling material.
6. If individual provisions of these GTC are or become invalid, this will not affect the validity of the remaining provisions. The contractual partners are obliged to agree on a new provision which comes as close as possible to the purpose pursued by the invalid provision.
The conditions mentioned above are the General Conditions for Sales and Delivery (domestic/international):
The company Prewa Verpackungsmaschinenbau GmbH
35418 Buseck / Großen-Buseck
Previously referred to as supplier