1. General Terms and ConditionsAll goods and services shall be supplied on the basis of our terms and conditions of sale and delivery below; the following terms and conditions shall also govern repairs to and commissioning of ARBURG injection moulding machines, even if no specific reference is made to them in individual cases. Their application may only be excluded, in full or in part, in individual business transactions by express agreement. Any special arrangements which exclude or contradict our general terms and conditions of business, in full or in part, shall only be valid if they have been confirmed in writing by us. If the customer does not raise any objection to our order confirmation within one working week of receipt of same, our terms and conditions of sale and delivery shall apply in their entirety and unconditionally. Our customer’s general terms and conditions of contract and business, in particular terms and conditions of purchase, shall not apply to goods and services provided by us without our express acknowledgement. We shall not be bound by them even if we do not specifically object to them in any individual case. Acceptance of goods and services provided by us shall, in any event, include unconditional acknowledgement of our terms and conditions of sale and delivery, as well as the waiving of any terms and conditions which our customers may include on their forms. The same condition shall apply when our customers make a downpayment and the first payment.
2. Order acceptance, performance data2.1 Our tenders are non-binding at all times. Orders shall only be deemed to apply in the specified scope with our written confirmation unless we have agreed otherwise in individual cases. This tender shall be accepted, at our discretion, within four weeks through the submission of an order confirmation or through the unconditional provision of the ordered goods and services.
2.2 Our order acceptance only extends to the provision of goods and services in the country of destination, unless otherwise expressly agreed. We shall reserve the right to rescind the contract with immediate effect if it comes to our attention that our customers and, with their permission, third parties intend to export our goods and services to countries outside the European Union in situations where the customers are based in the European Union.
2.3 Performance specifications for our machinery shall only be binding upon us where this is shown in a current brochure or has been expressly confirmed in writing by us. We reserve the right to make design changes which we feel are appropriate on the basis of technical progress or at our discretion. If any such changes are made, we shall be entitled to apply any price increases which this may entail.
3. Prices, terms and conditions of payment, default in payment3.1 Our sales prices shall apply ex-works exclusive of packaging, shipping and insurance costs. The prices for our products are based on the cost factors prevailing when the contract is concluded. Changes which occur in the pricing structure up to the time when the goods and services are provided shall entitle us to review our prices accordingly provided more than four months elapse between the conclusion of the contract and delivery.
3.2 If, following conclusion of the contract, we perform a special promotion at special rates, these special rates shall have no bearing on current contracts which have been established at normal list prices. Special promotional prices shall only apply to contracts which are expressly concluded within the scope of the special promotion and which have been confirmed as such by us.
3.3 Unless otherwise agreed in any individual case, payments for machines or complete modules shall be due on the following schedule: 30 % of the price net when the order is placed, 60 % of the price net when we announce that the goods are ready to ship, 10 % of the price net 30 days after delivery. In the case of individual sales of accessories and spare parts, the entire invoiced amount shall be payable net monthly account. All invoices for repairs and installation work shall be payable net monthly account.
3.4 If payment terms are exceeded or in the event of payment default, we shall charge interest at a rate of 8% per annum above the current European reference interest rate (EURIBOR) applied by the European Central Bank unless higher rates of interest are agreed. We shall reserve the right to assert claims for further default damages. We shall be entitled to offset incoming payments against older debts first of all, then against costs and interest attaching to the main service and, finally, against the main account receivable. The customer may only offset costs or withhold payments if its counter claims are established by a court of law, are not disputed or are expressly acknowledged. The right to withhold payment shall also only apply if the counter claim which is being asserted is based on the same contract as our own claim.
3.5 If the customer fails to settle invoices which are due or exceeds the payment terms which have been granted to it, or if the customer‘s financial circumstances deteriorate following the conclusion of the contract, or if information pertaining to the customer comes to our attention following the conclusion of the contract which puts into question their solvency or creditworthiness, we shall reserve the right to request payment of the rest of the customer‘s debt immediately and, changing the agreements that have been made, request payment on account or the payment of a deposit or, if delivery has been effected, payment of all sums owing to us which are based on the same contract. This shall apply, in particular, if the customer fails to keep up its payments, if cheques issued by the customer are not honoured, if bills of exchange issued by the customer are not paid by it, if insolvency proceedings are instituted against the customer or it’s assets or if an application for insolvency proceedings is filed but proceedings are not opened as there are insufficient assets to cover the costs of the proceedings.
3.6 Bills of exchange or cheques may only be tendered with our permission. The duty of payment is fulfilled at the time the bill of exchange or cheques are cashed / honoured. Payment should be made by bank transfer, bill of exchange or cheques etc.
4. Delivery and performance time, delayed performance,partial delivery 4.1 We shall make every effort to comply with the time limits and deadlines stated in the order confirmation. However, our delivery date shall not be binding unless a fixed deadline for delivery (fixed transaction) is expressly agreed in writing. Specially agreed lead times shall commence when we send out our order confirmation, albeit not before receipt of the first instalment in accordance with Terms and Conditions Sale and Delivery ARBURG Ltd clause 3.3. Deadlines shall be deemed to have been complied with if the goods being delivered have been handed over to the carrier or if we have notified the customer that the goods are ready to ship by the time the deadline expires. If we fail to meet a delivery deadline which has been agreed in writing, we shall only go into default following the expiry of a reasonable extension to the deadline granted in writing by the ordering party.
4.2 Compliance with deadlines for performance shall be contingent upon the customer supplying all the test objects, documentation, requisite permits and approvals, in particular plans on time, as well as compliance with the agreed terms and conditions of payment and other contractual duties, such as the customer‘s duties to cooperate. If these preconditions are not met on time, the deadlines shall be extended accordingly.
4.3 If business operations are disrupted, in particular in the event of strike action or lock-outs, as well as other cases of force majeure, affecting either our factories or those of our suppliers, the delivery dates shall also be extended accordingly. The customer may not assert any claims for compensation owing to delays in performance or in lieu of performance in any cases where performance is delayed, even after a deadline which we have been set for performance. This, however, shall not apply in cases where compulsory liability is accepted in respect of wilful malice or gross negligence. The customer may only rescind the contract within the scope of statutory regulations provided responsibility for the delay rests with us. In this event, the customer shall, upon our request, undertake within a reasonable period of time to explain whether, in light of the delay, it still insists on performance and/or which of the entitlements and rights owing to it shall be asserted by it.
4.4 We shall reserve the right to supply goods or services in batches within the agreed delivery and performance times, provided this is reasonable for the customer.
5. Shipping, transport & packaging, transfer of risk5.1 Our products shall always be shipped ex-works, provided nothing to the contrary has been expressly agreed with the customer in writing.
5.2 All transport shall take place at the expense and risk of the recipient provided nothing to the contrary has been agreed.
5.3 The seller’s risk and risk of loss and accidental deterioration of the contractual objects being delivered shall pass over to the customer once they have been made ready for collection or shipping and once the customer has been advised that the goods are ready. Otherwise, the seller’s risk and risk of loss and accidental deterioration of the contractual objects being delivered shall pass over to the customer once the goods have been handed over to the carrier.
5.4 At the customer‘s request and expense, we shall insure the consignment against theft, breakage, transport, fire and water damage, as well as against any other insurable risks.
5.5 We shall be under no obligation to take back disposable packaging. In any event, cardboard boxes and polystyrene packaging shall count as disposable packaging.
6. Assuring retention of title6.1 We shall retain title to the goods until such time as all amounts owing to us have been settled in full, in particular including the accounts receivable on balances arising from other contracts with the customer (title retention until outstanding accounts have been settled). This shall also apply to conditional accounts receivable which arise in the future. Title shall only pass over to the customer, in particular, if and insofar as we are released from any of the liabilities attaching to the customer which we have entered into in the interests of the customer, in particular in the application of bill of exchange/cheque procedures.
6.2 The customer shall undertake to treat goods supplied by us and to which we retain title with care; it shall undertake, in particular, to arrange adequate new-for-old insurance for these at its own expense against loss, damage and destruction, such as against damage caused by fire, water and theft. The customer shall hereby assign its claims arising from the insurance policies to us at this stage, amounting to the purchase-price claim for the goods supplied by us on condition of reservation of title. We shall accept this assignment of claims.
6.3 The customer may neither pledge the goods to which we retain title, nor transfer same whether as security or otherwise. Under no circumstances may the customer resell the goods to which we retain title. However, we shall reserve the right to permit a resale if the customer provides us with the name of its buyer before the contract is concluded and the machine is handed over and to assign its purchase-price claim to us in line with the amount still owing to us as per the current account. We shall hereby accept this assignment of claims. However, our consent to the resale shall always be conditional upon our customer‘s contract partner signing the declaration of assignment and hereby stating that it has knowledge of the assignment and may only effect payment to ARBURG, thereby discharging our customer‘s debt. The resale shall be prohibited in any event if the customer effectively assigns or pledges a third party the sum owed to it by its contractual partner out of the resale beforehand or has agreed with it to prohibit assignment.
6.4 If insolvency or settlement proceedings occur, the buyer shall undertake to advise any third party of the fact that we hold the title to the goods prior to the institution of proceedings by means of labelling or by any other expedient means.
6.5 Whilst we retain any claim upon the goods, we shall be entitled to ask the buyer for information in respect of which of the supplied goods, to which we retain title, are still in its possession and where they are located. We shall also reserve the right to inspect the goods there at any time and to collect them from there.
6.6 If the goods are seized or interfered with in any other way by third parties, the customer shall undertake to notify us accordingly in writing forthwith so that we can take legal action against the third party.
6.7 The processing, reworking or reshaping of goods supplied by us, subject to our retention of title, by the customer shall always take place in such a way that we incur no liabilities as a result. If the goods supplied by us, subject to our retention of title, are processed with other goods which do not belong to us, we shall acquire the joint ownership of the new object, on a ratio reflecting the value of the goods supplied by us (final invoiced amount including VAT) relative to the other objects processed at the time of the processing. The object resulting from the processing shall be subject to the same conditions as the goods supplied subject to our retention of title. If the goods supplied by us, subject to our retention of title, are mixed or combined with objects which do not belong to us, the conditions which apply shall be the same as those which apply in respect of the aforementioned cases of processing or reshaping. If the mixing or combination takes place in such a way that the customer‘s object is regarded as the main constituent, it is agreed that the customer shall assign us co-ownership on a pro rata basis. The customer shall safeguard the resulting sole or joint ownership for us. Within the scope of its ordinary business activities, the customer may avail of the newly created products which have resulted from the processing, reworking or reshaping or combination or mixing for as long as and provided it complies on time with its duties arising from the business relations with us. However, under no circumstances shall the customer be entitled to resell or otherwise dispose of these new products whereby it agrees with its customer to prohibit assignment, or to pledge the goods or transfer them by way of security. The customer shall hereby assign the sums owing to it from the sale of these new products, to which we acquire (joint) title, within the scope of our share of ownership of the goods that have been sold, by way of security. If the customer combines or mixes the supplied goods with a main object, it shall hereby assign its claims against the third party to us to an amount reflecting the value of our goods. We shall hereby accept this assignment of claims. Accounts receivable accruing from bills of exchange received from the customer by way of or in lieu of payment shall be hereby assigned to us. We shall hereby accept the assignment of claims. Instead of handing over the bills of exchange, the customer shall safeguard the bills of exchange, which are received, for us.
6.8 We shall undertake to partially release the securities owing to us, at the customer‘s request, if the realisable value of our securities exceeds our accounts receivable against the customer by more than 10%; it shall be up to us to choose which securities to release.
7. Warranty7.1 Our products shall come with a 24-month warranty in the case of new machinery. The period of warranty shall last 12 months in the case of certain special options which are identified as such in the tender and in the order confirmation. In the case of used machines, the warranty shall last 3 months. The periods of warranty shall commence on the day that the goods are delivered. The foregoing conditions shall not apply in cases where longer warranties are stipulated by law.
7.2 Our warranty shall be restricted to design, production and material defects, excluding warranty for wearing parts such as relays, heating strips, fuses, seals, filters, all parts of the plasticizing unit and other parts which are particularly prone to wear.
7.3 Our warranty shall be conditional upon defects being reported within 8 days of their appearance. This, however, shall not exempt the customer from its duties to inspect the supplied goods immediately for defects and/or for discrepancies of any kind in terms of type and quantity and, where a defect exists or there has been an error in the delivery, to report this forthwith. The date on which we receive this complaint shall determine whether it is received on time. If complaints are submitted late, entitlements under warranty shall be ruled out, regardless of the grounds for the claim.
7.4 If substantiated complaints are submitted on time, we shall remedy the problem under warranty by either repairing the part or delivering a new part on workdays at our discretion. The customer shall grant us sufficient opportunity to repair the defective part or deliver a replacement. If a replacement is supplied, the customer shall undertake to return the defective object. Under no circumstances may the customer reduce the purchase price or rescind the contract unless the law prescribes otherwise.
7.5 The customer shall undertake to permit no-one other than us to rectify any defects which occur within the period of warranty. If it omits to do so and rectifies any defects itself or arranges for third parties to do so, its warranty entitlements shall be invalidated. The customer shall be required to pay for any costs incurred through its attempts to carry out any such repairs.
7.6 We shall accept no liability whatsoever for indirect damages, consequential damages resulting from defects, default damages or for damages resulting from the violation of legal goods by third parties. This, however, shall not apply in cases where compulsory liability is accepted in respect of intent, gross negligence or due to death, physical injury or harm to health. This shall also apply where culpability rests with legal representatives or vicarious agents, as well as in the case of culpability in contractual negotiations.
7.7 Neither the complaint nor warranty-related actions (defect assessment, repair, delivery of a replacement) shall hinder the expiry of the period of limitation on warranty claims or cause the period of limitation to start anew. If parts are repaired or replacements supplied, or if spare parts are replaced for repair purposes, this shall not set separate new periods of warranty or limitation in motion.
7.8 No liability shall be assumed for damage arising for the following reasons: unsuitable or inappropriate use, defective installation or commissioning by the customer or a third party, natural wear and tear, defective or negligent treatment or handling, defective maintenance, failure to comply with the requirements in the operating manual, unsuitable operating equipment and resources, use of substitute materials and failure to only use original parts, defective building work, unsuitable subsoil, chemical, electrochemical or electrical interference unless responsibility for this rests with the supplier.
7.9 The domestic customer shall pay additional warranty costs resulting from the fact that it wishes to have our products exported abroad. The same condition shall apply if a foreign customer exports our products to a country other than the one confirmed by us for delivery.
7.10 ARBURG injection moulding machines conform to the safety regulations which are generally applicable at the time of delivery. Amendments to safety regulations and the resulting costs for upgrades during the service life of the machine shall be borne by the operating firm and fall within its responsibility. If the buyer purchases an ARBURG injection moulding machine and has it exported, it shall undertake to adapt this machine to comply with the safety requirements in the country where it is being commissioned, to advise its Issue: 05/2012 · Printed in Germany customers immediately of the relevant safety-related requirements, to make users aware of revisions in the operating manual, safety regulations and capabilities during the operating life of the ARBURG injection moulding machine, and to upgrade the machine in line with changing safety precautions. In the event that the violation of any of these obligations could prompt a third party to assert a claim for compensation, the buyer shall thus indemnify ARBURG from any such claims and resulting costs, and also reimburse ARBURG forthwith for any costs and losses sustained through any such violation.
8. Liability, onus of proof8.1 Whatever the legal grounds, we shall only assume liability for losses or expenses incurred in vain in cases of intent and gross negligence or in the culpable violation of an important contractual duty; this shall also include the actions of our executive staff and other vicarious agents.
8.2 Our liability owing to a violation of an important contractual duty shall be limited to the type of losses which are characteristic of this type of contract and which are predictable when the contract is concluded unless a case of gross negligence or intent exists. In particular, we shall not assume liability towards our customers or third parties in respect of lost profits, loss of production and consequential damages resulting from defects.
8.3 The aforementioned restrictions in liability shall not apply in cases of mandatory statutory liability.
8.4 Under no circumstances shall we assume liability for compensation in excess of the level specified in the clauses above, regardless of the legal nature of the claim being asserted.
8.5 If the customer has justified claims for compensation in accordance with this article, they shall expire within one year of the statutory start of the period of limitation provided that a longer period of limitation is not required by law.
8.6 In the case of equipment such as step-up aids for loading materials manually and auxiliary equipment of any kind for setting up, servicing, repairing or operating the machine which is not included in the scope of delivery, ARBURG shall assume no liability whatsoever during the use and/or non-use of the above equipment and for the resulting consequences sustained by the user.
8.7 The above provision has nothing to do with a change in the onus of proof to the disadvantage of the customer.
9. Rescinding the contractOrders shall be accepted subject to the creditworthiness of the buyer. This is a basis for business. Notwithstanding the provisions contained in clause 3.5. above, we shall reserve the right to rescind the contract if the customer submits false details on matters relating to its creditworthiness, ceases its payments or if an application is filed for insolvency or settlement proceedings in respect of its assets. If a creditworthiness check reveals information which suggests that the customer may not be able to keep up regular payments, we shall reserve the right to rescind the contract. Information provided to us by credit agency or bank shall count as proof of the existence of these circumstances. In the event of a dispute, submission of this information to a notary public to be appointed by us shall serve as adequate proof; the notary public shall treat the name of the credit agency or bank as confidential. If a machine that has been ordered is not accepted for any reason or if we rescind the contract due to the possibilities available to us, the buyer shall be required to pay us flat-rate compensation of 15% of the value of the order, although we shall reserve the right to request a higher level of compensation as well against presentation of corresponding evidence.
10. Place of performance, place of jurisdiction & applicable law10.1 If the customer is a business person, a legal entity under public law or under special public assets or otherwise eligible for prorogated jurisdiction, Warwick shall be the place of performance and the exclusive place of jurisdiction for all claims arising between the parties to the contract, including any disputes in respect of bills of exchange and cheques. This shall also apply if the customer does not have a general place of jurisdiction in the United Kingdom, moves its domicile or normal place of residence to another country after the conclusion of the contract or if its domicile or normal place of residence are not known at the time the claim is put before the court.
10.2 All legal disputes between the customer and us shall be governed exclusively by English law. The application of regulations governing the international sale of goods (CISG; UN purchase law) shall be expressly excluded.
11. Storage of dataWe hereby notify the customer that, where necessary for business purposes and permissible within the scope of statutory regulations, personal data shall be stored and processed by us on computer.
12. ConfidentialityThe customer shall undertake to treat ARBURG‘s know-how, as well as any of our other business and trade secrets, including the contents of the contract with the customer, as strictly confidential. The customer shall take all the reasonable precautions necessary to safeguard the aforementioned information against unauthorised access, unauthorised publication, duplication, circulation and other unauthorised use. The obligations specified in this article shall also extend over and beyond the end of this contract.
13. Other provisions13.1 Our written correspondence shall be deemed to have been received by our customers if it is sent to the last-known address which we have for them. It shall be presumed that correspondence has been sent if we are in possession of a signed copy.
13.2 Ancillary verbal agreements shall only be valid if they are confirmed by us in writing. This shall also apply to any change in this provision.