1.1 The company including these general terms and conditions (IWK Verpackungstechnik GmbH Purchasing Conditions) into a contract will be referred to as the “principal” in the following.
1.2 The IWK Verpackungstechnick Gmb Purchasing Conditions, as well as further contractual conditions indicated in the order confirmation, apply exclusively. Contradictory or differing conditions of the contractor do not apply, even if the service is accepted without reservations and in full awareness of differing conditions stipulated by the contractor.
1.3 Only letters of intent and acts under the law, such as orders, processing requests and contracts (also referred to as “order” in the following) in written form and signed by the principal are deemed legally binding, but also electronically with an electronic signature in accordance with § 127 Sect. 3 BGB [Civil Code], unless otherwise agreed.
1.4 All orders on the part of the principal are subject to confirmation. Written confirmation is required for the subject terms of the contract.
1.5 The drafting of projects and quotations on the part of the contractor takes place free-of-charge and without commitment, unless otherwise agreed. Realisation is at the discretion of the principal. Insofar as enquiries of the principal contain technical specifications or requirements, these do not release the contractor from his own, thorough validation.
2.1 The contractor must comply with the requirements of the principal in respect of quality management and environmental protection in accordance with the specifications supplied with the respective order.
2.2 The contractor undertakes to comply with the provisions of the law regarding the putting into circulation, the taking-back, and the environmentally appropriate disposal of electric and electronic devices (ElektroG [Electrical and Electronic Equipment Act]), to meet the resulting obligations to the principal, and – as far as these are non-transferable – to support him in the fulfilment thereof. In this respect, he specifically undertakes to apply the manufacturer identification for the principal in accordance with § 7 Sentence 1 ElektroG free-of-charge and as per the specification of the principal, as well as labelling the subject matter of the contract with the symbol in accordance with § 7 Sentence 2 ElektroG in connection with Annex 2 of ElektroG as per the orders of the principal.
3.1 Principal and contractor, in the light of their responsibility to humans, society, and the environment, undertake to comply with the rules of the Code of Conduct, which becomes integral part of this contract.
3.2 If utilisation is designated for a security-sensitive position of the principal, the contractor must ensure to deploy only employee(s) who have been subject to a security check and have been sworn to secrecy in a separate, written declaration.
4.1 The price agreed upon in this contract is considered a fixed price, and includes delivery carriage paid to destination. The price covers all transport, insurance, packaging, and other incidental costs and fees to delivery/assembly ready-to-operate at the receiving destination as indicated by the principal, unless otherwise agreed. If the bearing of costs by the principal has been expressly agreed upon, then he is to select the transport carrier. The goods are to be declared in the carriage note in such a fashion that the cheapest permissible shipping rate applies. To execute the transportation, the contractor is to indicate to the principal that the goods are ready for dispatch. In this case, the principal will purchase freight insurance and bear the corresponding costs. The principal thus does not require the legally prescribed freight insurance [“SVS / RVS-Verbotskunde”]. No further insurance costs are assumed by the principal.
4.2 The price includes the costs for possibly arising services of installation and integration, which are to be performed by the contractor without disruption of the business operations – if necessary outside of normal business hours. Additional or supplemental services, as well as any other efforts that exceed the original scope of the order are only remunerated, if a written endorsement to the original contract was agreed upon prior to the performance of these services. These are to be specifically highlighted on the invoice.
4.3 For the usage of relevant instructions for the operation, control, usage, and service, or other documents, are to be delivered both to the head office of the principal, as well as the designated destination, and are deemed to be covered by the price of the order.
4.4 All deliveries are to be furnished with a delivery note. Delivery notes and – if expressly agreed – notifications of dispatch must contain the following information:
– Order number, company reference number and date of the order,
– Number of a partial delivery, if applicable,
– Number and date of the delivery note,
– Date of dispatch,
– Indication regarding the type and scope of the delivery, as well as material identification numbers and item numbers referred to in the order, and
– Mode of dispatch.
4.5 If the billing of services has been agreed upon according to hourly rates, travel and waiting times as well as travel expenses are not compensated separately.
4.6 The payment deadline shall start with the receipt of a testable invoice, but not earlier then performance/acceptance of performance of the services. Payment runs of the principal are made on the 9th working day every month. If the principal receives the invoice before or on the 9th working of a month, payments are made (1) with a cash discount of 3% by the 9th working day of the following month, (2) with a cash discount of 2% by the 9th working day of the next but one month, or (3) net without deductions by the 9th working day two after next month. The relevant date for meeting the payment deadline shall be the date on which the remitting order is issued by the ordering party
4.7 Payment of the invoiced sum without reservations by the principal does not imply the acceptance of the contractor’s service as may be required by the contract.
5.1 In case of default on the part of the contractor, the legal provisions are to be applied, unless determined otherwise in the following.
5.2 In case of delay of delivery, the principal is entitled to claim a contractual penalty to the amount of 0.5 per cent of the order value for every commenced week of delay, but he may not claim more than 5 per cent of the order value. The contractual penalty can be demanded alongside fulfillment of contract. The possible exercise of other claims shall remain unaffected.
5.3 If a contractual penalty has been agreed upon, the principal may retain the contractual penalty as a proviso up to the final payment.
5.4 The principal is entitled to claim the contractual penalty alongside the fulfilment of contract.
5.5 Further legal entitlements due to default remain unaffected by these provisions.
In case of delay on the part of the principal, the legal provisions are applied, providing that the principal is only considered to be in default of payment, if he does not effect payment following receipt of request for payment from the contractor.
7.1 The principal may above all withdraw from the contract or terminate the contract with immediate effect if insolvency proceedings against the contractor are commenced, or if the commencement thereof has been denied due to the fact that the insolvency assets fall short of the costs associated with the proceedings, or if the orderly processing of the contract appears doubtful as his payments have been suspended on a permanent basis.
7.2 The principal is entitled to the same rights, as soon as an application for bankruptcy proceedings is received by a court of law.
Insofar as the contractor is responsible for damages due to product liability, he undertakes to indemnify the principal from the claims for damages raised by third parties. The principal will notify the contractor with regards to the assertion of any such claims for damages.
9.1 For the passing of risk and the transfer of property, the legal provisions apply, unless otherwise agreed.
9.2 The delivery of manufactured or mobile goods, which are to be produced, requires the written acceptance by the principal. This includes assembly services.
9.3 Furthermore, in the case of deliveries, the risk is transferred to the principal upon receipt of the delivery at the designated destination with the signing of the delivery note. The principal is to check for performance within five working days of delivery only with respect to easily recognisable defects, and contests these without delay. Otherwise, the principal is released from the obligation to inspect and give notice of defects as prescribed by § 377 HGB [Code of Commercial Law].
10.1 The contractor assumes the responsibility for defects for the contractually prescribed and defect-free condition of the performance he is due to provide for the duration of the term of the warranty. Unless otherwise agreed, the period of prescription for claims for defects amounts to 36 months from the transfer of risks, or if an acceptance is required, from the acceptance of the service. The statutory period of limitation for claims for defects is extended by the period, during which the defective service cannot be used for the intended purposes.
10.2 For defects arising during the statutory period of limitation, the legal provisions apply. The contractor is committed to bear all expenses incurred by the principal in the scope of the responsibility for defects. Further legal entitlements remain unaffected by this provision.
10.3 Claims by the principal due to defects of title expire two years after the date of a first claim by a third party for the violation of property rights or other rights, or alternatively when the principal is notified of the existence of defects of title in anu other way. If the contractor acts maliciously, the legal provisions apply.
11.1 Both parties undertake to keep all non-public information of the respective other party confidential, which become known to them due to their business relationship, and not to make use of these for their own purposes or the purposes of third parties. Further or other legal nondisclosure duties remain unaffected.
11.2 Any released storage media, samples, drafts, drawings, etc. are to be returned to the principal upon completion of the order. Any right of retention is precluded. These are to be kept confidential, just as models, castings, and any other tools. These may only be replicated upon express written permission, and may only be utilised in the performance of our orders, and neither sold to third parties, nor handed over or made available to third parties in any form.
11.3 The non-disclosure commitment remains in force after the settlement of the contract; it only expires, if the engineering know-how embodied by the assigned models, masks, samples, data, illustrations, drawings, calculations, and other documentation has become public knowledge without violation of the legal duties by either party.
11.4 All documentation made available to the contractor by the principal remain the property of the principal, and are to be returned together with all transcripts, copies, etc., upon demand of the principal or alternatively destroyed upon his request. The copying of such objects is only permissible in the scope of operational requirements and subject to the provisions of copyright. Any right of retention is precluded in this respect.
11.5 Sub-contractors must be committed accordingly.
The contracting of sub-contractors requires the written assent of the principal.
13.1 The contractor must provide verifiable billing information. Invoices for down payments, partial payments and final payments are to be designated as such, made out in an itemised fashion, and consecutively numbered. The invoice must also meet the requirements of § 14 UStG [Value Added Tax Act]. If the invoice does not meet said requirements, the principal shall be entitled to withhold payment, without being deemed responsible for the delay in payment. The invoice is to be issued at the earliest on the day, on which the service was rendered as prescribed by the contract, and is to be sent to the address for account as indicated on the order.
13.2 In the case of other services and work deliveries, which are subject to value added tax in Germany, and which are rendered by foreign contractors, the tax liability is transferred to the principal (§ 13a, b Umsatzsteuergesetz [Value Added Tax Act]). The contractor may not include German value added tax in the invoices for his services. If import turnover taxes arise due to the transportation of goods from a third country to Germany by the contractor, then these are to be paid by the contractor.
13.3 The principal is entitled, to retain any withholding taxes and/or taxes deducted at source from the gross price, and to remit these to the tax authorities, if no valid release document is present for the contractor.
Receivables of the contractor against the principal may only be ceded with expressed written assent of the purchasing department. If the business transaction constitutes a commercial transaction for both sides, § 354a HGB shall apply.
15.1 The contractor is not entitled to any right of retention, as far as these are based on counterclaims from other transactions with the principal.
15.2 The contractor may only offset against claims, which were deemed to be undisputed or legally binding.
16.1 Place of fulfilment is the destination of the service as designated by the principal.
16.2 German law shall apply as applicable to domestic parties of Germany.
16.3 The contractor is fully responsible to ensure that he has observed and complied with the legal conditions with respect to customs and excise and exports. The principal has no obligations in the context of the delivery, as far as customs and excise or export regulations are concerned.
16.4 Place of jurisdiction shall be the at the registered office of the principal, if the contractor is a merchant, a corporate body under public law, or a holding company under public law. The principal is nonetheless entitled to call on the relevant court of law at the registered office of the contractor.
All of our goods and services provided to businesses are subject exclusively to our general terms and conditions, mentioned below. General terms and conditions of the customer do not apply even if we do not expressly object to them and nevertheless complete the delivery. Variations and amendments are only binding with our expressed written confirmation and only apply to the business for which they were agreed upon. In the framework of ongoing business relationships, the following conditions also apply to future contracts even if no specific reference is made to their applicability.
1. Our offers are always subject to change.
2. After the customer has ordered, the contract comes into effect upon our written confirmation. Any statements made prior to the order in the course of processing the order, especially those concerning performance, consumption or other specific data, are only to be considered binding if we confirm them as binding in the confirmation of contract or in separate written correspondence.
1. The contractual performance requires that the customer fulfils all his obligations with regards to co-operation, information, consultation as well as custody and safety.
2. The customer is therefore obliged inter alia to timely answer all questions, to provide us with the required or requested drawings and documents, to provide us with all necessary approvals and permits and participate in meetings for discussing the design, and to participate in pre-acceptance and final acceptance tests.
3. The Customer is furthermore obliged to provide us with specification compliant test material in sufficient scope and number. If the test materials have tolerances, the customer is obliged to provide us with test materials of the respective upper and lower tolerance range. We can only warrant the proper function of the equipment for the parts provided to us.
1. Our prices are valid ex works and exclude packaging (for deliveries abroad, duty not paid).
2. To the extent that no other arrangements are made, payment is due immediately.
3. If unforeseen increases in materials, labour or transport costs, taxes or levies, occur between the conclusion of contract and delivery, we are entitled to adjust our price to reflect these factors, under the condition that delivery is not planned within four months of conclusion of contract.
4. If, after conclusion of contract, the customer makes changes, at any time we can adjust the prices reflect-ing the added expenses caused by the change.
1. If contractually specified payment deadlines are not met, we are entitled to demand liquidated damages in the amount of 8 % above the current prime lend-ing rate reference to the contract value without proof of loss. We reserve the right to claim damages for any additional losses. The customer is entitled to prove that no loss occurred or that any loss was considerably lower than the amount owed as of liquidated dam-ages.
2. The payment deadline is only met if the amounts are credited in full on our accounts and at our unrestricted disposal within the stated period.
3. The customer can only offset or retain claims based on undisputed or legally established claims, unless there is a defect. In the case of retaining payments, the claim must derive from the same contractual relationship.
4. In the case of intra-community deliveries, the customer is obligated to provide its tax ID number to us along with the other information and documentation necessary to establish tax exemption. If the customer does not fulfil these obligations in a timely fashion, we will not treat the delivery as tax exempt.
5. In that case we are entitled to bill and demand the applicable VAT. To the extent that a delivery is incorrectly treated as tax exempt on the basis of incorrect statements form the customer, the customer must hold us harmless from the tax debt and bear any and all associated added costs.
1. We will honour the delivery dates and deadlines stated in the order confirmation by displaying all commercially reasonable efforts; however, any dates and timelines mentioned are only provisional and do not oblige us to perform to a fixed calendar date or an agreed upon delivery time.
2. Under no circumstances do delivery periods begin prior to the clarification of all details in connection of the requested performance. Performance of deliveries requires that all requests for clarification are answered in due course, all necessary or requested drawings and documents have been supplied, test materials have been supplied in adequate scope and number, all required permits and approvals have been issued and that customer has participated in design review meetings, pre-acceptance tests at our facilities and acceptance test. If these conditions precedent are not fulfilled for reasons for which we are not responsible, the delivery deadline will be extended correspondingly.
3. We are only obligated to perform and deliver if the customer has issued all agreed-upon and/or due payments. If payments are rendered late, all delivery deadlines will be extended correspondingly.
4. The deadline or date is deemed honoured if the shipment is readied for dispatch or picked up before the deadline expires and/or upon the mentioned date.
5. We point out that any resale of the delivered goods can be subject to export regulations. In addition to customer-supplied goods can also contain U.S. components (goods, software, technology) this circumstance may require compliance with U.S. regulations. The buyer undertakes to comply with all relevant national, European and U.S. export and re-export regulations.
6. We are neither responsible nor liable for delays that result from legal or regulatory restrictions on ex-ports or result from the fact that delivery cannot take place because of export restrictions. If a delivery can-not be carried out as foreseen in the contract, due to export regulations or requirements of the authorities the customer can withdraw from the contract. In such a case the customer is not obliged to indemnify us, unless the customer knew or gross negligently did not know that the supplied products were in conflict with law and/or export regulations, prior to placing the or-der.
7. If failure to meet a deadline or delivery date is attributable to force majeure, mobilisation of armed forces, war, civil unrest, strikes, lock-outs or other unforeseeable events affecting our business, for which we are responsible and which either occurred or became known to us after the conclusion of the of the contract, the deadline or delivery date will be ex-tended accordingly.
8. To the extent that a contractual penalty is agreed upon, it is limited in amount to 5 % of the net total amount of the order. A reservation of contractual penalty is to be individually and expressly mentioned in writing during the process of acceptance. If an imposed contractual penalty is unreasonably high, we can demand that it be reduced to a reasonable amount; § 348 HGB does not apply.
1. To the extent that we have not arranged anything else, our ordinary place of business is the place of fulfilment for our delivery obligations.
2. Shipping of our products occurs ex works from our manufacturing facility. Costs and risk are borne by the customer. This also applies if we have committed ourselves to assembly and/or commissioning responsibilities.
3. We only conclude insurance policies at the ex-pressed written request of the customer, who in such cases bears the costs.
1. The goods that we deliver remain our property until all claims deriving from the business relationship be-tween us and the customer have been paid in full. This reservation of title also applies to bills of ex-change.
2. The customer is not entitled to resell the goods without our written consent until payment is made in full; the customer is not permitted to pledge the item(s) or give it(them) in security.
3. In the event that the good subject to reservation of title is combined with others not belonging to us (installation), we are entitled to a share of co-ownership of the new item thereby created in proportion to the order value of the object under reservation of title at the time it. If the customer obtains sole ownership of the new item, the contracting parties herewith agree that the customer will grant us co-ownership of the new good in proportion to the order value of the combined good under reservation of title to the value of the remaining goods. The customer is obligated, to allow us access to the documents required to deter-mine our share of co-ownership on request. That the customer will hold the items in our co-ownership in safekeeping for us free of charge is agreed to here and now.
4. In the case of payment by bill of exchange, our reservation of title and security rights are unaffected and will remain in place until our liability stemming from the bill of exchange or cheque has ended.
5. In case the customer is in breach of contract, especially in cases of payment default for claims result-ing from the business relationship we can, without prejudice to our other rights and after setting a reasonable grace period, withdraw from the contract and demand the return of the goods.
6. The limit of coverage is placed at 120 %. We are obligated to release the securities owed to us to the extent that the realisable value of our securities exceeds the secured claims by more than 20 % Our reservation of title on a delivered good however persists until our compensation for the delivery of this good has been paid in full.
If a different place of fulfilment is agreed to, the following applies to deliveries that require acceptance under a contract of services:
1. The customer is obligated to participate in the preliminary acceptance of the machines in our works. A record of the pre-acceptance will be kept.
2. Acceptance must be completed without undue delay after delivery.
3. The customer is obligated to certify acceptance for us after commissioning is completed.
4. Insignificant defects do not entitle the customer to refuse acceptance.
5. If no formal acceptance is demanded or carried out, the acceptance will be deemed completed at the latest once the customer begins use.
6. On acceptance the risk is transferred to the customer to the extent that the customer does not already bear it. Risk also transfers if the customer comes into default of acceptance.
1. The customer is obligated to inspect the good immediately after receipt in order to establish that it con-forms to the specifications named in the order and is free of defects (§§ 377, 381 Para. 2 HGB (Commercial Duties to Inspect and Report Defects).
2. This must be recorded in writing.
1. The warranty period is
a.) for purchase contracts 12 months starting from hand-over,
b.) for service contracts 12 months starting from when the service was provided,
c.) for contracted work 12 months from acceptance however at the latest 15 months from delivery inso-far as the customer is responsible for any delay in acceptance.
2. In the event that a complaint of defect is registered in a timely fashion, the customer can request remediation or our choice (through correction of the defect or delivery of an item free of the defect). If two attempts of remediation prove fruitless, (failed remediation) or if we refuse to remedy the defect or if it proves unreasonable, the customer can withdraw from the contract, reduce the purchase price or demand compensation for damages according to the provisions of these terms.
3. No warranty is granted for deterioration of the de-livered good as a result of natural wear and tear, especially not for parts subject wear and tear, for dam-age that occur after transfer of risk or for improper handling (e.g. incorrect connection, test material which dimensions exceed or fall short of the agreed upon tolerances).
4. A warranty for certain properties is only granted if it had been expressly confirmed in writing. We do not warrant that the delivered goods are suitable or fit for the customer’s purposes.
5. Data concerning performance, consumption, etc., that we have confirmed in writing on conclusion of the contract are never to be seen as individual guarantees according to § 443 BGB.
6. The customer is obligated to grant us the necessary time and opportunity to affect remedy in case of defects. In the case of malfunctions and failures we will send personnel within a reasonable period of time. We cannot however warrant that personnel will be available immediately at any time.
7. Our liability is excluded if the customer or a third party modifies or reworks the delivered good(s) with-out our prior approval.
1. We are not liable for damages and/or reimbursement of futile expenses– regardless of their basis in law – that are attributable to slight negligence on the part of our organs, our legal representatives or our subcontractors.
2. To the extent that we are liable for direct and immediate damages, our liability is limited for all contractual, extra-contractual and other claims for compensation for damages and expenses, regardless of their legal nature and independent of the number of dam-aging events, to the amount of damage typically fore-seeable at the time of conclusion of contract.
3. Regardless of the claim’s basis in contract or in law, our liability for any indirect damages so-called subsequent damages, e.g. loss of profits, stoppage time, production downtime, re-calls, etc., is excluded in cause and amount.
4. The liability exclusions and/or limitations named here do not apply a.) in case injury to life, limb or health or b.) in the case of malicious intent or gross negligence on our part or c.) in the event of a breach of essential contractual obligation on our part on whose fulfilment the proper execution of the contract depends and on whose fulfilment the customer there-fore may regularly depend upon or d.) to the extent that we fraudulently concealed a defect, or e.) to the extent that we provided a guarantee of properties or durability, or f.) for claims under the German Product Liability Act.
1. Assembly work and commissioning services as well as instructions given to the customer’s operating personnel will be billed according to time and expense. Billing will be done at our regular rates. We will bill worked hours, waiting times, travel times, expenses for initiation, overnight costs as well as the necessary expenses for fares and haulage. The mate-rial used as well as other expenses for the consumption of materials will be billed at reasonable prices in absence of any agreement on prices.
2. If assigned assembly personal cannot commence work due to reasons for which we are not responsible, the waiting time will be billed as time worked. If, for reasons for which we are not responsible, we must complete the work at times or under conditions other than those specified in our contract, the customer must also compensate the added expenses we incur due to this. To the extent that the work must be completed at times or under conditions that require higher rates (including overtime), we are entitled to bill added charge on top of our hourly rates in the amount of the percentage rates applicable to us.
The instruction of operating personnel will also be billed if assembly is included in the price.
1. An operator’s manual and general plans according to EG 42/2006 are included in the scope of delivery. More detailed plans are only provided on the basis of separate agreements and compensation; we are not obligated to conclude such agreements.
2. We can only provide operating instructions and documentation for purchased parts to the extent that we ourselves receive them from our sub-suppliers. To the extent that we are obligated to maintain confidentiality with respect to our sub-suppliers, we cannot be asked to provide such documentation.
3. In the construction of our products, deviations from safety norms, guidelines and recommendations are permitted to the extent that the same safety is guaranteed in some other manner.
1. To the extent that nothing else is arranged, all technical or commercial information that we provide remains our exclusive property and must be kept confidential with respect to third parties, and may only be used to fulfil its contractual purpose.
2. We reserve all rights to such information (including copyrights and the right to register for commercial protected rights, such as patents, utility patents, etc.).
The customer is obligated to refrain from reproducing machines that we especially designed for the customer and to refrain from contracting any third parties to reproduce such machines. Should these obligations be breached, we can – without prejudice to our other claims and rights—demand the customer pay a reasonable licensing fee.
XV. Place of Fulfilment, Court of Jurisdiction, Concluding Provisions
1. Changes and amendments to the contract must occur in writing to be valid. This also applies to any waiver of the requirement of written form.
2. Place of fulfilment for all obligations deriving from this contract, especially for the payment of the purchase price, is our local office in each case as listed below.
3. The parties herewith recognise the courts at the legal domicile of our business offices as the sole responsible courts for any and 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 courts.
4. Should individual provisions of these general terms of sale or the contract concluded on their basis be or become legally unenforceable, this will not affect the remaining provisions. Should a partial clause prove unenforceable, the enforceability of the remaining clause will remain unaffected if it can be severed from the content of the partial clause, is comprehensible in its own right and results in a rule that remains logically sound in the framework of the contract as a whole. The parties are obligated to replace unenforceable clauses with provisions that most closely approximate the commercial purpose of the unenforceable clause. This applies analogously in the case of loopholes as well.
5. The customer is instructed and also gives consent that all data concerning it, including personal data in the sense of the Data Protection Act, will be stored in the framework of our electronic data processing. The customer will make sure that any necessary consent forms from its employees will be on-hand.
6. The laws of the Federal Republic of Germany apply exclusively to the legal relationships deriving from and in connection with this agreement, excluding the Referring Law and the provisions of the UN Convention on Contracts for the International Sale of Goods (“CISG”).
IWK Verpackungstechnik GmbH
Tel: +49 (0) 7244- 968-0
Fax: +49 (0) 7244- 96073