General terms and conditions

GENERAL TERMS OF SALE

 

I. General

All of our deliveries and performance provided to contractors are exclusively subject to our terms and conditions as follows. Terms and conditions of the Customer do not apply, even if we do not explicitly object to them and still execute delivery. Deviations and supplements are only effective upon our explicit written confirmation; these apply only for the transaction for which they have been entered into. In the course of the ongoing business relationship, the following conditions apply for future contracts even if their application is not explicitly referred to in future.

II. Quotation, and formation of a contract

1. Our quotations are always non-binding.

2. Following order placement from the Customer, the contract comes into effect through our written order confirmation. Statements that are made before order placement in the context of order processing, in particular relating to performance, consumption or other individual data, are only binding as agreements relating to the quality of our performance if we have provided written confirmation that they are binding upon order confirmation, or thereafter.

III. Collaboration of the purchaser

1. Contractual fulfillment requires that the Customer fully meets its obligations in terms of collaboration, clarification, and advice, as well as care and protection.

2. The customer therefore commits, among other aspects, to promptly responding to all queries, to sending the required or requested drawings and documents, to issuing all required releases and approvals, and to participating in appointments communicated in advance for design discussions and preliminary and final acceptance.

3. The Customer is also responsible for sending a sufficient quantity and number of test materials that comply with specifications. In as far as there are tolerances in the test material, parts in the respective upper and lower tolerance rage must be made available to us. Flawless function can only be guaranteed for these parts made available to us.

IV. Prices

1. Our prices apply ex-works, excluding packaging (with deliveries abroad: Duty unpaid).

2. Unless otherwise agreed, payment is due immediately.

3. If, between contract formation and delivery, there are unforeseeable increases in material, wage or transport costs, taxes, or fees, we are entitled to adapt prices in line with these factors if delivery is not to be made within four months of contract formation.

4. If the Customer makes changes after contract formation, we may adapt the prices at any time in accordance with the additional costs arising due to the change.

V. Payment conditions, and offsetting

1. If contractually agreed payment deadlines are exceeded, we are entitled to assert a flat-rate claim to damages of 8% above the respective base interest rate relating to the order value, without proof of damages. We reserve the right to assert further-reaching damages. The Customer is permitted to prove that damages were not incurred at all, or that the level of damages is significantly lower than the flat-rate amount.

2. The payment deadline is only complied with if the payment is credited to our account within the deadline, and we are able to freely dispose of it.

3. Unless there is a defect, the Customer is only permitted to offset against uncontested claims or claims that have been established as final and absolute, and only retain payments due to such claims. In the event of the retention of payments, the claim must be based on the same contractual relationship.

4. In the event of intra-Community deliveries, the Customer is obliged to provide us with its tax ID number, other information necessary to check tax exemption, and the proof necessary to verify tax exemption. If the Customer does not promptly fulfill these obligations, we will treat the delivery as not tax-exempt.

5. We are then entitled to additionally calculate and demand any VAT incurred in each case. If we have incorrectly treated a delivery as tax-exempt based on inaccurate information from the Customer, the Customer must release us from the relevant tax liability, and bear all the additional expenses.

VI. Delivery deadlines and periods

1. We will work to the best of our ability to comply with the delivery deadlines and periods stated in the order confirmation; however, these only reflect the intended delivery time, and not one that is agreed firmly or in terms of a calendar date.

2. Delivery periods do not in any case start before the complete clarification of all details for the requested execution. The execution of deliveries requires prompt responses to all queries, transmission of the required or requested drawings and documents, transmission of a sufficient quantity of test material, issuance of all necessary releases and approvals, and participation in promptly communicated appointments for design discussions with design release, preliminary release in our manufacturer’s works, and acceptance. If these requirements are not met due to reasons for which we are not responsible, the delivery deadline will be delayed accordingly.

3. We are only obliged to execution and delivery if the Customer has made all agreed and/or due payments. If payments, in particular agreed advance payments, are made late, the delivery deadline will be delayed accordingly.

4. The period or deadline is considered complied with if the shipment is made available for shipment or picked up within the period or at the deadline.

5. We refer to the fact that export regulations relating to use may apply in the event of resale of the delivered goods. In addition, US components (goods, software, and technology) may also be included in the goods delivered by the Customer, and this fact may require compliance with US-American specifications. With respect to us, the Seller commits to ensuring compliance with national, European, and US-American export regulations that are relevant in the event of export or re-export.

6. We do not accept any liability for delays in deliveries that result from statutory or regulatory export restrictions or for the event that a delivery cannot be made at all due to export restrictions. If a delivery cannot be executed as contractually provided for because export regulations or decrees from authorities prevent this, the Customer may withdraw from the contract at any time. The Customer is not obliged to provide compensation for damages in this case unless the Customer was aware before contract formation of such a statutory or regulatory impediment to export that prevents delivery, or was not aware of this before contract formation due to gross negligence.

7. If non-compliance with a period or a deadline is due to force majeure, mobilization, war, riot, strike, lockout or other unforeseeable impediments that affect our operations, for which we are not responsible, and which have occurred or become known to us after contract formation, the period or deadline is appropriately delayed.

8. If a contractual penalty is agreed, its amount is limited to 5% of the net order total. Retention of the contractual penalty must be explicitly declared in writing upon acceptance, and for the respective individual case. If an applied contractual penalty is unreasonably high, we may demand that it is reduced to a reasonable amount; Section 348 HGB does not apply.

VII. Place of fulfillment, transfer of risk, and insurance

1. Unless we have agreed otherwise, our manufacturer’s works are the place of fulfillment for our delivery obligation.

2. Our products are shipped from our manufacturer’s works at the expense and risk of the Customer. This also applies if we have additionally performed assembly and/or start-up.

3. We only take out insurance at the explicit written request of the Customer, and the Customer bears the costs of this.

VIII. Retention of title

1. The items delivered by us remain under our ownership until complete payment of all claims arising from the business relationship between us and the Customer. This retention of title also applies in the event of payments by bills of exchange.

2. Until full payment, the Customer is not entitled to resell items without our written approval; the Customer is not permitted to pledge items, nor assign them as security.

3. In the event of the combination of item subject to retention of title with other items not belonging to us (installation), we are entitled to the resulting co-ownership share in the new item based on the ratio of the order value of the item subject to retention of title, to the value of the other items at the time of combination. If the Customer acquires sole ownership of a new item, the contractual parties hereby agree that the Customer grants us co-ownership of the new item based on the ratio of the order value of the combined item subject to retention of title, to the value of the other items. The Customer is obliged to disclose to us, at any time and on request, the documents required to determine the share of co-ownership. The Customer’s safekeeping of the items under our co-ownership for us free of charge is hereby agreed.

4. In the event of payments in the bill of exchange and check procedure, our rights to retention of title and security rights remain unaffected and continue to apply until our liability arising from the bill of exchange or check has ended.

5. In the event of counter-contractual conduct on the part of the Customer, in particular due to default on payment with a claim arising from the business relationship, we may, after setting a reasonable grace period, withdraw from the contract and reclaim the item, without prejudice to our other rights.

6. The cover limit is agreed at 120%. We are obliged to release the securities due to us if and when the realizable value of our securities exceeds the secured claims by more than 20%. Our retention of title relating to a delivered item continues to exist until our claim for compensation for the delivery of this item has been completely fulfilled.

IX. Acceptance

In the event of agreements that require acceptance under a works contract, the following applies:

1. The Customer is obliged to participate in preliminary acceptance of machines at our works. A log of preliminary acceptance is created.

2. Acceptance by the Customer must be provided immediately on delivery.

3. The Customer is obliged to provide us with a certificate of acceptance once start-up has been completed.

4. Non-material defects do not justify the Customer refusing acceptance.

5. If no formal acceptance is requested or performed, acceptance is considered provided at the latest when the Customer begins use.

6. The risk transfers to the Customer on acceptance, in as far as the Customer does not already bear this risk. In addition, the risk transfers to the Customer at the latest when the Customer enters default of acceptance.

X. Incoming goods inspection and notification of defects

1. The Customer is obliged to review the goods immediately upon receipt to determine whether they correspond to the specifications stated in the order and are free of defects. (Section 377 and Section 381 Para. 2 HGB (commercial duty to examine and provide notification of defects).

2. This must be asserted in writing.

XI. Warranty

1. The warranty period is
a.) for purchase contracts:
12 months from handover;

b.) for service contracts:
12 months from provision of the service;

c.) for works contracts:
12 months from acceptance, but at the latest 15 months from delivery in as far as the customer is responsible for the default of acceptance.

2. In the event of promptly asserted notifications of defects, the Customer may demand subsequent fulfillment based on our preference (through rectification of the defect or delivery of a non-defective item). If two attempts at subsequent fulfillment are unsuccessful (failed subsequent fulfillment) or if we refuse subsequent fulfillment, or if subsequent fulfillment is infeasible, the Customer may withdraw from the contract, reduce the purchase price, or claim compensation for damages in accordance with these provisions.

3. No guarantee is provided for restrictions to the object of delivery due to natural wear, in particular to wearing parts, damage after the transfer of risk, or improper handling (e.g. incorrect connection, the processing of parts with dimensions that fall short of or exceed the stipulated tolerance limits, etc.).

4. The guarantee is only provided for certain characteristics if we have given explicit and written assurance of this. No guarantee is provided that the delivered item is suitable for the Customer’s purposes.

5. Data confirmed by us in writing upon formation of the contract relating to performance, consumption, etc. are never independent declarations of guarantee in the sense of Section 443 BGB.

6. The Customer is obliged to grant the time and opportunity required for subsequent fulfillment. In the event of breakdown and failure, we will dispatch personnel within a reasonable period. However, we cannot guarantee that personnel will be immediately available at all times.

7. We cease to be liable if, without our advance approval, the Customer itself reworks or makes modifications to our delivery, or has the same performed by third parties.

XII. Liability for compensation for damages, and reimbursement of futile expenditure

1. With respect to Customer claims to compensation for damages or reimbursement of futile expenses, we are not liable – on any legal basis – for Customer damages (including expenditure) which have been caused as a result of slight negligence by our entities, legal representatives, employees, or agents.

2. In as far as we are in principle liable for compensation to damages arising from direct and immediate damage, liability for all contractual, non-contractual and other claims to compensation for damages and expenditure is limited in amount to the damage that is typically foreseeable at the time of contract formation, without consideration of their legal nature and regardless of the number of damage events.

3. Our liability, on whatever legal basis, for any indirect and consequential damage (such as lost profit, halted production, recalls, etc.) is ruled out in principle and in all amounts.

4. The exclusions of liability and limitations of liability stated here do not apply
a.) in the event of injury to life, limb or health, or
b.) in the event of malice or gross negligence on our part, or
c.) in the event of a breach of a contractually material obligation incumbent upon us, without which the proper performance of the contract is not possible, and the fulfillment of which the Customer may therefore ordinarily rely on, or
d.) in as far as we have maliciously concealed a defect, or
e.) in as far as we have provided a guarantee for quality or durability, or
f.) for claims in accordance with product liability law.

XIII. Assembly, start-up, and instruction

1. Assembly and service work and the performance of start-up work as well as instruction of the Customer’s operating personnel are invoiced for based on time and effort. These are invoiced for in accordance with the version of our charging rates that applies in each case. Working hours, waiting times, travel times, accommodation allowance expenditure, accommodation costs, and required fees for transportation expenditure and carriage are charged for. The material used as well as other resources required for the consumption of materials are charged for in accordance with the agreed prices, unless there is an agreement on other reasonable prices.

2. If an instructed member of assembly staff is not able to complete their work for reasons for which we are not responsible, the waiting time is charged for as working time. If we perform work at times or under circumstances that deviate from the contractually required conditions for reasons for which we are not responsible, the Customer must provide additional compensation for the additional expenditure caused by this. If the performance of work at times and under circumstances that require additional wage costs (including for overtime) is requested, we may charge supplements on our hourly charging rates in the amount of the percentages applicable for us in terms of pay scales. The instruction of operating staff is also charged as an additional amount if assembly is included in the price.

XIV. Documents, technical drawings, and safety specifications

1. The scope of delivery includes an operating manual and technical overview drawings in accordance with EC 42/2006. We only provide further-reaching technical drawings on the basis of a separate agreement on compensation; we are not required to enter into such an agreement.

2. We can only provide operating instructions and documents relating to sub-suppliers units to the extent that we ourselves receive them from our upstream suppliers. In as far as we have committed to maintaining confidentiality with respect to our upstream suppliers, no release of the corresponding information can be asked of us.

3. In the execution of our products, deviations from safety standards and directives as well as recommendations are permitted in as far as the same level of safety is guaranteed in another way.

XV. Secrecy

1. Unless otherwise agreed, all business or technical information made accessible by us remain exclusively under our ownership and must be kept secret from third parties and used exclusively in the framework of the respective contractual purpose.

2. We reserve all rights to such information (including copyrights and the right to register commercial property rights such as patents, utility models, etc.).

XVI. Reverse engineering

The Customer commits to refraining from the reverse engineering of machines that have been specifically planned by us for the Customer, and to not commissioning any third parties with the reverse engineering of such machines. In the event of a breach of this obligation, we may – regardless of our other claims and rights – demand the payment of an appropriate license fee from the customer.

XVII. Place of fulfillment, place of jurisdiction, and final provisions

1. Amendments and supplements to the contract must be in written form in order to be effective. This also applies to the rescission of the written form requirement.

2. The place of fulfillment for all liabilities arising from this contract, in particular the payment of the purchase price, is our respective branch as stated below.

3. The parties hereby recognize the exclusive jurisdiction of the courts at the location of our branch for all legal disputes arising from or in connection with this contract. However, we are also entitled to assert claims against the Customer at its general place of jurisdiction.

4. If individual provisions of these Terms of Sale or of the contract concluded on the basis of them are or become ineffective, this shall not impact the efficacy of the remaining provisions. If a partial clause is ineffective, the efficacy of the rest of the clause is unaffected if it can be separated in terms of content from the partial clause, is otherwise understandable in and of itself, and results in a remaining meaningful regulation in the overall structure of the contract. The parties commit to replacing ineffective clauses with provisions that come as close as possible to the economic purpose of the ineffective clauses. This applies with the corresponding adjustments in the event of gaps.

5. The Customer has been informed that all data concerning it, including personal data as defined by data protection law, are stored in the course of our electronic data processing, and consents to this. The Customer guarantees that it has any consent required from its employees in this respect.

6. The law of the Federal Republic of Germany exclusively applies to legal relationships arising from and in the context of this agreement, to the exclusion of principles on conflict of laws and the provisions of the UN Convention on Contracts for the International Sale of Goods (“CISG”).

IWK Verpackungstechnik GmbH
Lorenzstrasse 6
D-76297 Stutensee
Tel: +49 (0) 7244- 968- 0
Fax: +49 (0) 7244- 96073
E-mail: info@iwk.de
www.atsautomation.com