General Delivery and Payment Conditions of SPG Packaging Systems GmbH for business transactions involving tradesmen as laid down in the Code of Commerce, legal persons under public law or separate public estates
1.1 Our whole current and future business relationship, all deliveries and services on our part – including supplementary services, consultation and information services – will be made solely and exclusively according to our General Terms of Business set out in the following, even in such cases where no further reference is made to these in the course of subsequent business transactions.
1.2 Deviating General Terms of Business on the part of our customers or distributors will not be accepted. Such terms will only apply if recognized by us in writing. Tacit acceptance – including such behavior as might give reason to assume such an acceptance – will not be given.
2. Conclusion of Contract, Release from Contract
2.1 Quotations made by us are subject to confirmation and run out of validity after three months.
2.2 Our customer/distributor is committed to uphold the conditions contained in his quotation for a period of one month after receipt by us.
2.3 Amendments and supplementary clauses including additional agreements are only effective if made in writing. Verbal agreements do not constitute a permissible exception to this formal requirement.
2.4 Execution of delivery on our part may also by implication be understood to confirm conclusion of contract.
2.5 We reserve the right to make reasonable technical alterations and alterations with regard to the color and form of the object supplied by us.
2.6 All illustrations, drawings and product descriptions to which our customer is given access are not scale versions and represent only approximations unless they have been expressly designated as binding.
2.7 Should our customer place his order for merchandise by electronic means, the text of the contract will be recorded and stored by us and sent to the customer by e-mail upon request together with a copy of our valid General Terms of Business.
2.8 A contract is concluded under the proviso that we ourselves are supplied with correct and punctual deliveries by our sub-contractor. This only applies in case of non-delivery being due to no fault of our own, particularly in case of conclusion of a congruent hedging transaction with our sub-contactor. In this respect we will surrender our claims against the primary supplier to our customer.
2.9 We will inform our customer without delay of our inability to fulfill our obligations to him. Any down payment he may have made will be reimbursed.
3. Prices, Maturity, Withholding of Payment, Offset of Payment, Expiry of Cash Deductions & Discounts
3.1 Unless expressly agreed to the contrary, the prices invoiced will be those valid on the day of delivery.
3.2 Our prices are always quoted “EXW (in conformity with International Commercial Terms 2000 (Incoterms)), for domestic transactions plus Value Added Tax at the currently applicable rate. For deliveries out of SPG Packaging Systems supply depots, preliminary freight charges for transportation between the factory and the external depot and, in case of foreign external depots, any foreign import duties that may arise will be invoiced. The prices for steel packaging strap are quoted gross for net.
3.3 The prices for strapping tools, accessories and seals are quoted inclusive of packaging. For machines, lines and strap feeders, the cost of packaging, containers and pallets – in addition to any expenses arising from the return or recycling of the packaging material – will be invoiced.
3.4 The purchase price – unless agreed otherwise in written– is payable net 30 days after invoice date. At the latest upon expiry of this deadline, our customer will be in default of payment.
3.5 During the period of his arrears, our customer will be obliged to pay interest on his debt to the amount of 8% over and above the basic interest rate set by the European Central Bank. However, we reserve the right to impose provably higher damages on the arrears.
3.6 Without exception, all additional fees arising from our acceptance of settlement of account by check or draft will be charged to payer.
3.7 Where there are reasonable doubts concerning the solvency of our customer (for instance, in case of payment arrears, non-cashing by banks of checks or drafts) that indicate a substantial deterioration in his financial situation, we are justified in carrying out any outstanding deliveries only if payment is made in advance or securities provided. Payments from deliveries already executed and for which a delay of payment has been granted will be due with immediate effect and will justify the holding back of any outstanding deliveries until after payment has been made.
3.8 Our customer may only offset his claims against our own if his counter-claims have been legally determined or are undisputed. He may only hold back his specific performance if the object of his protest is based on the same contractual relationship.
3.9 All cash deductions and discounts granted will become null and void upon onset of payment arrears.
4. Delivery Dates, Periods of Delivery, Obstacles to Delivery, Rescission
4.1 Our delivery period will begin with the dispatch of our order acknowledgement but will not come into effect until we have received the specifications or documentation to be supplied by our customer and not before receipt of any agreed down-payment.
4.2 The delivery period will be deemed to have been met should we have dispatched the goods before the delivery period has elapsed or advised the customer of readiness for collection.
4.3 Acts of God, strikes, late delivery by our supplier or other operational disturbances beyond our control as well as delays by our customer with regard to his contractual obligations will impede adherence to delivery terms for the duration of the impediment. In such case we will also be justified, after the expiry of a term of one month, to withdraw from the contract or parts of it without such withdrawal constituting a cause for claims to be brought against us.
4.4 We will still also have the right of withdrawal from the contract in cases where an extension of the delivery term had initially been agreed.
4.5 We will furthermore only be considered to be in default of delivery after the issue of a written reminder and the expiry of an appropriate extension term of one month to be granted by the customer. Our customer is justified in withdrawing from the contract should he have threatened his withdrawal in writing within a period of one week at the most after the fruitless expiry of the extension period and should we not be able to make delivery even within the course of this period. There will be no payment of damages.
5. Dispatch, Transfer of Risk, Responsibility for Safe Keeping
5.1. Dispatch will be made EXW / International Commercial Terms 2000 (Incoterms). Should our customer fail to nominate a freight haulage company immediately upon request, we will be justified in commissioning - but not obliged to commission - a freight haulage company of our own nomination to execute delivery on behalf of our customer.
5.2 The risk of loss or aggravation of the goods at random transfers to our customer with effect from the time the goods leave our ramp or the ramp of a freight haulage company of our own nomination or – in case of delivery by carrier – the ramp of the freight haulage company or any other person, who is assigned with the transport.
5.3 Partial deliveries are permissible without special agreement.
5.4 Should delivery be delayed due to circumstances beyond our control, risk transfers to our customer with effect from the time of receipt of our notice of collection or dispatch.
5.5 Even in case of defects in the goods supplied, delivery of said goods is initially to be accepted by our customer and these may only be returned to us with our prior agreement.
5.6 Our customer is responsible for the safekeeping of our goods on our behalf and without charge until completion of transferal of ownership, proper resale or return of our goods to us.
6. Reservation of Proprietary Rights, Warrant to Make Collection
6.1 Until settlement of all of our claims (including all interests and costs) against our customer – including those incurred in the future – resulting from the entire business transaction between us, we reserve simple, extended and lengthened proprietary rights to the goods supplied even where payment is made on separate part invoices. For current accounts, our reservation of proprietary rights to the goods also serves as security against the balance receivable. If the goods are mixed or combined with foreign goods, the customer will assign hereby his rights of property and will them keep safe accordingly mercantile accuracy.
6.2 Our customer is only entitled to resell – but not to chattel or give in mortgage - the separate property in the proper course of business, as long as he is not in default. At this present stage in time, he surrenders to us all claims that could accrue to him through a resale of the property to a third party in the amount of our payments outstanding. At this present stage in time we herewith accept the surrender of these claims.
6.3 The authority to resell or otherwise use the separate property only exists provided that our customer’s claim to payment against his purchaser is not transferred to a third party (nor to banks in order of a blanket assignment or of a debt collection routine on a trust basis). Our customer has to inform us immediately about any assignment or any other kind of detraction of our rights caused by a third party.
6.4 In case of liability in the form of drafts or secondary obligations on our part arising from the business relationship, our reservation of proprietary rights will not expire before payment of the last draft or expiry of the secondary obligation.
6.5 Insofar as maintenance and inspection work is required on our separate property, our customer is committed to regularly perform such work at his own expense.
6.6 Our customer is obliged to properly insure the separate property against theft and damage of any description and to furnish proof of his compliance with this point should we so request.
6.7 Our customer is entitled to collect the surrendered claims. We have the authority to repeal this power of collection and to make collection of the claim on our own behalf immediately our customer comes into payment arrears.
6.8 The reworking, processing or installation of our separate property by our customer is performed in our name and on our behalf but not at our expense. We acquire co-proprietorship of the new item in proportion to the invoice value of the goods supplied by us to the otherwise processed items plus an additional security supplement of 25% of our claim.
6.9 Upon demand, our customer is obliged to provide all necessary information on the continued existence and extent of our separate property, to inform us of any amounts outstanding from customers incurred on account of the extended reservation of proprietary rights and to make over to us any original proof enabling us to enforce settlement of these claims. In such case he is at the same time obliged to reveal this surrender of claims to his customer and to irrevocably instruct him to make payment to us.
6.10 Insofar as the total amount owed to us is indisputably secured in the amount of more than 125%, we are obliged, at the request of the customer, to release securities of an appropriate amount as we choose.
6.11 Our customer expressly declares that he has made no other advance dispositions with regard to our separate property that will restrict our rights arising from the above-mentioned reservation of proprietary rights.
6.12 Our final repossession of the goods supplied to payment arrears by our customer will not lead to his release from the contract. On the contrary, the current market value of the repossessed goods will be added to the unpaid invoice relating to the purchase of those goods.
7. Warranty Cover in Case of Defects, Notice of Defects, Burden of Proof, Exclusions
7.1 Our customer is obliged to advise us in writing of any obvious defects in the goods supplied within a period of one week from the date of receipt of said goods, concealed faults within the same period after their discovery, submitting a sample where appropriate. Non-adherence to the deadline will automatically rule out the enforcement of warranty claims. Adherence to the deadline will be deemed fulfilled if notice of defects is dispatched within that period.
7.2 Deviations in dimensions, weights, quantity or quality due to raw material or production reasons are excepted.
7.3 The full onus lies with our customer to prove that he has satisfied the requirements necessary to claim subsequent reparation of the defects, viz. he must provide proof of the defect, of its presence at the time of transfer of risk, of the date on which the defect was determined and of his presentation of the notice of defect within the due period.
7.4 It is deemed as understood that the condition of the goods delivered is only as contained in our product description. Public comments, recommendations or publicity on the part of third parties on the other hand do not constitute a description of the delivered goods in the stipulated sense.
7.5 We will not be held liable for only negligible defects in the goods we have supplied.
7.6 For other defects in our supplied goods we will initially grant reparation in the form of repair or replacement as we choose.
7.7 We will make reparation at no expense and free of freight charges from the original receiving station or original place of destination, in case of quality defects, however, only if the defective items are returned to us.
7.8 We are entitled per defect to undertake at least three attempts at repair or to make two part deliveries.
7.9 The period of time of the supplementary performance is about 4 weeks each.
7.10 Should our attempts at reparation finally miscarry or should we fail to adhere to the deadlines set, our customer is in principle entitled only either to a reduction in the purchase price, to a withdrawal from purchase or to damages in lieu as he chooses.
7.11 Should our customer, after the miscarriage of reparation, choose to accept a reduction in the purchase price or a withdrawal from the contract on account of a legal or material defect, he will be entitled to no additional damages on account of the defect.
7.12 Should our customer choose, after the miscarriage of reparation on our part, to accept payment of damages, the goods supplied will remain in our customer’s charge until a decision has been made on this matter, can this be reasonably expected of him. His right to damages is restricted to the difference between the purchase price and the value of the defective goods. This does not apply, however, if we are proved to be in willful breach of contract.
7.13 Additional claims, particularly concerning compensation for damages or expenses incurred as a result of defects or the consequences of defects exist only within the framework of the provisions laid down under Paragraph 8 (General Liability Restrictions).
7.14 The warranty will expire if the goods supplied have been altered by the interference of unauthorized persons or through the installation of parts originating from other companies than SPG , altered or damaged as a result of unsuitable or improper use, faulty assembly and/or operation, unsuitable operating material, poor building measures, unsuitable foundations, chemical, electro-chemical or electrical influences, by the use of non-original SPG strapping material, unless the damage does not have its origin in any of the excluded factual situations mentioned above.
7.15 We do not on principle enter into warranty commitments. Manufacturers’ guarantees from our suppliers passed on to our customers are unaffected by this clause.
7.16 All guarantees are excluded for used goods supplied by us.
8. General Liability Restrictions, Onus of Proof, Expiry of Warranty Cover
8.1 We will not bear unrestricted liability for claims on the part of our customer resulting from product liability, for claims resulting from physical or health damage to our customer that can be ascribed to us or for loss of his life. Something different only applies if the customer should prove us to be guilty of willful breach of contract.
8.2 In the case of gross breach of fundamental contractual obligations, our liability is likewise restricted to the foreseeable, typical and direct average damages; compensation for indirect damages (e.g., loss of profit) will be excluded. The same applies in the case of minor negligence on our part.
8.3 The onus of proof of negligence on our part lies with the customer.
8.4 We will not principally be liable for minor willful breach of negligible contractual obligations.
8.5 All claims on the part of our customer resulting from the contract will elapse in a period of one year commencing from the date of transfer of risk for the supplied goods. This does not apply should the customer prove us guilty of fraudulent breach of contract.
8.6 The course of prescription will not be impeded by any negotiations or investigations required by our customer concerning the existence of a defect or concerning the mutual rights and powers of both parties in the light of this defect.
8.7 The above-mentioned liability restrictions are also applicable for the actions of our legal representatives, agents or assistants.
9. Other Restrictions to Right of Rescission
9.1 Outside of the warranty provisions covering defects in the goods supplied on our part, our customer only has a right of rescission in such case as he can provide proof of our being at fault.
9.2 Only willful or gross negligence on our part or on the part of our legal representatives, agents or assistants will constitute proof of such fault.
9.3 In the event of an order cancellation we are entitled to demand compensation for any costs (internal and third party) caused by the ordered machine. This entitlement of compensation takes effect from the date on which we enter into any obligations with third parties in order to get material, services etc. for the ordered machine.
10. Compliance with Safety Regulations
10.1 Our machines and lines provide the standard protection against accidents if used according to the terms of the contract in conjunction with any security barriers it may be necessary for our customer to install.
10.2 The smooth functioning of our packaging machines is dependent upon the usage of the packaging material subjected to constant controls during manufacture in order to guarantee compliance with our usual tolerances and material quality.
10.3 Our customer may only entrust the operation of lines supplied by ourselves to persons who have been given adequate instruction regarding the technical stipulations, the safety regulations under public law and the practical handling of the plant. Any possible expenses connected with instructing personnel in the handling and trial operation of the lines will be borne by the customer.
10.4 The safety provisions of the manufacturers of products used by us in the production of the machinery are to be strictly complied with.
11. Software and Protection of Intellectual Property
Our customer is entitled to use any software and manuals supplied with the machinery. Such software and manuals remain our intellectual property and may not be copied by our customer or made accessible to third parties.
12. Place of Performance, Place of Jurisdiction, Application of Law
12.1 Place of performance for deliveries and payments is the town in which our company is based.
12.2 Sole place of jurisdiction for all disputes arising from this contract excepting claims relating to rental, leasing or patent matters is Düsseldorf. This is also applicable should the customer have no general place of jurisdiction in Germany.
12.3 We are, however, also entitled to enforce our claim against our customer at the place of jurisdiction where his company is based.
12.4 Only German law is applicable to the legal relationships between ourselves and our customer. The application of the UN Agreement on International Trade (CISG) is not permissible.
13. Concluding Clauses
13.1 Should individual clauses of the contract with our customer including these General Terms of Business or special agreements be or become ineffective in whole or in part, this will not affect the validity of the remainder of the agreement. Whatever we and our customer would have agreed on upon becoming aware of the ineffectiveness of the clause in question will apply in place of the wholly or partially ineffective clauses in order to achieve the economic purpose signified by this clause.
13.2 The same applies correspondingly in case of an omission in a clause.
Hilden, October 1, 2015
SPG Packaging Systems GmbH Westring 13 40721 Hilden Germany