General terms and conditions of delivery and payment of Pematech GmbH
The Pematech GmbH documentation is included with the total price as a single copy in English. This documentation includes:
- User manual, maintenance manual with functional description (also on CD-ROM)
- Description and documentation of bought-in parts
- Circuit diagrams of pneumatic and electric equipment
- Spare parts, wearing parts, parts lists and assembly drawings.
The detailed complete design remains the property of Pematech GmbH and is not permitted to be offered in its entirety or in any part.
We wish to point out specifically that the final documentation will be delivered about 6-8 weeks after the final acceptance because of updating to match the final design. This will not entitle the customer in any way to withhold any payments.
2 DELIVERY AND PAYMENT TERMS
2.1 Delivery Time
Delivery time will be in accordance with the backlog of orders at the time of order placement.
The named delivery time is based on the following conditions:
- Settlement of all technical and commercial details for the order placement.
- Settlement of questions coming up during the project within a reasonable time frame.
- Punctual delivery of model parts and other goods to be furnished by the customer.
- Die installation area is to be cleared completely prior to the beginning of the installation and the condition of the ground admits a rapid installation and putting into service.
- All constructional works regarding concrete, fundament, steel girder and paintwork are to be
- finished as far as not covered by the scope of delivery.
Meeting of the delivery time is under the condition of being self-supplied in time. In case delays become apparent, Pematech GmbH will inform you accordingly without undue delay.
In case of delays being not under the responsibility of Pematech GmbH, Pematech GmbH reserves the right to postpone the date of delivery.
Costs arising out of such a delay and costs of an eventually necessary interim storage caused by such a delay are to be borne by the customer.
FCA Radolfzell (Incoterms 2010)
2.3 Payment Terms
For amounts under € 25,000
100 % - of order value upon delivery
For amounts of € 25,000 or more
60 % - on order acknowledgement
30 % - after preliminary acceptance of the delivery item at Pematech’s premises and delivery to you
10 % - after installation and putting into operation at your premises
In case the specified date for the second and third payment respectively is delayed for reasons being not under the responsibility of Pematech GmbH, payment shall be made 2 weeks after notice of completion of the preliminary acceptance at Pematech’s plant (2. payment) and 2 weeks after notice of our readiness for delivery (3. payment) respectively.
Payments are due 14 days after invoicing net.
The prices quoted do not include any taxes and duties. However, should the delivery item become liable to any taxes or duties for whatever reason, this has to be paid for additionally by the customer.
2.4 Validity of Quotation
4 weeks as from date of Quotation
Acceptance of the delivery item shall be performed according to an acceptance process to be defined by the parties. The parties shall generate a separate acceptance record concerning the acceptance of each part of the delivery item which is to be signed by authorized representatives of both parties. In case you withhold signature of the acceptance report without stating good reasons (accompanied by the respective proof), acceptance shall be deemed occurred fourteen (14) days after presentation of the acceptance report.
Notwithstanding the above, acceptance of the delivery item shall take place with start of production and delivery of products produced with the delivery item.
In case the acceptance report identifies deficiencies of the delivery item to the agreed specification in whole or in part, the affected parts of the delivery item as well as the delivery item in whole shall be deemed accepted with correction of the identified deficiencies. There shall be no repetition of the acceptance process.
Minor deficiencies, which do not or not materially affect the function of the delivery item shall not entitle you to withhold the respective individual acceptance or final acceptance.
Pematech GmbH warrants for material defects and defect of title - to the exclusion of further claims – for the duration of 6 months (for max. 1% of the order value) since acceptance, however, 4 weeks after putting into operation at the latest, as described in Chapter 2.6.1 and 2.6.2 after. The regulation regarding Liability (Chapter 2.7) shall not be affected hereby.
2.6.1 Material Defects
1. Pematech GmbH shall at their own discretion remedy such defect in parts or deliver new parts that prove to be defective on account of circumstances arising prior to the transfer of risk. Determination of such defects are to be notified in writing to Pematech GmbH without undue delay. Title in replaced parts passes to Pematech GmbH.
2. You will give Pematech GmbH the necessary time and opportunity to carry out any remedial work and replacement, that Pematech GmbH at their own reasonably exercised discretion considers to be necessary, as otherwise Pematech GmbH shall be absolved of any responsibility for the consequences resulting therefrom. Only in cases of urgent jeopardy of operating safety and in order to avert disproportionately greater damages respectively you are entitled to rectify the defect by yourself or through third parties and to claim from Pematech GmbH the expenses thus incurred; whereby Pematech GmbH is to be informed immediately about such circumstances.
3. If a warranty case arises, Pematech GmbH will in addition to the direct costs of the remedial work and replacement respectively take over the costs of dispatch to the defined place of use of the delivery item as well as the appropriate costs of dismantling and installing.
4. Under statutory regulations you have the right to cancel the contract if, taking statutorily prescribed exceptional cases into account, Pematech GmbH will allow an appropriate period of time set by you to carry out remedial work or replacement because of a material defect to elapse in vain. In case the defect is only minor, you shall only be entitled to claim for the reduction in the agreed price. In all other cases, the right to claim for a reduction in the agreed price shall be excluded.
5. No warranty shall be incurred in particular in the following cases:
- In case of only minor deviations from the agreed condition and only immaterial impairment of the merchantability respectively
- Inappropriate or improper use,
- Faulty assembly and putting into operation respectively by yourself or a third party,
- Operation of the delivery item with defective safety and protective guards or incorrectly attached safety or protective guards,
- Non observance of the information in the user’s manual with respect to transport, storage, installation, putting into operation, operation, maintenance and cleaning of the delivery item,
- Arbitrary structural or software changes to the delivery item,
- Arbitrary other changes to the delivery item or parts thereof,
- Insufficient monitoring of the machine parts which are subject to wear and tear,
- Fair wear and tear,
- Faulty or negligent treatment,
- Incorrect maintenance,
- Unsuitable consumable materials,
- Inadequate building work,
- Unsuitable hard-standing,
- Chemical, electrochemical or electrical factors as far as they are not under the responsibility of Pematech GmbH.
6. In the event of incorrect remedial work by yourself or third parties, Pematech GmbH shall not take any responsibility for the resulting consequences. The same shall apply in case of changes to the delivery item without prior written consent of Pematech GmbH.
7. In cases of warranty on the delivery item being exported to foreign countries beyond the contractual stipulation, Pematech GmbH shall be entitled to invoice travel time and – costs as well as expenses separately.
The reaction time shall be extended by the required travel time and according to the availability of flight capacity (flight tickets).
2.6.2 Warranty in Case of Structural Alteration Work and Extension Measures
Despite the other regulations regarding material warranty, the warranty claims are limited to the measures carried out in case of structural alteration and extension measures
Pematech GmbH shall not warrant for parts, components and cells, which are part of the already existing equipment, or the functionality of the whole equipment.
The structural alteration and extension measures respectively are not to be understood as general overhaul of the existing equipment, its parts, components and cells.
2.6.3 Defects of Title
1. If the use of the delivery item leads to an infringement of industrial property rights or copyrights, Pematech GmbH will at their own costs procure the right for continued use or will modify the delivery item in a way being reasonable to you so that the violation of industrial property rights will be eliminated. In case this will not be possible under commercially adequate conditions or within an adequate time period, you will be entitled to terminate the contract. Pematech GmbH will also be entitled to terminate the contract under the above conditions. Additionally Pematech GmbH will indemnify you against undisputed or finally declared claims of the respective holder of the industrial property rights.
2. The named obligations exist only if
- You will inform Pematech GmbH without undue delay about the asserted jeopardy of industrial property rights or copyrights,
- All means of defense including out-of-court-settlements are reserved to Pematech GmbH,
- You support Pematech GmbH to an adequate extent in the defense of the asserted claims and enable Pematech GmbH to execute the modification measures according to the above section 1 respectively,
- The defect of title is not based on one of your instructions and
- The infringement of right was not caused by an arbitrary modification of the delivery item by yourself or use in a manner being not according to the contract.
3. The regulations regarding Liability, Chapter 2.7, paragraph 2 shall not be affected
1. In case you will not be able to use the delivery item according to the contract due to the negligence of Pematech GmbH as a result of an omission or fault in the execution of proposals and advises given prior to or after the entry into force of the contract or by violation of another contractual accessory obligation, in particular if you are not able to use the operating and maintenance instruction for the delivery item according to the contract, the regulations regarding Warranty according to Chapter 5.1 shall apply accordingly to the exclusion of further rights.
2. For damages which do not directly arise from the delivery item itself Pematech GmbH shall only be liable for whatever legal reason whatsoever
- In case of intent,
- In case of gross negligence of a member of the management board or an executive officer of Pematech GmbH,
- In case of culpable injury of life, body, health,
- In case of defects being concealed fraudulently by Pematech GmbH or defects, for which Pematech GmbH has guaranteed its absence,
- In case of defects to the delivery item as far as liability for personal injury or property damages to privately used goods is covered by the German Product Liability Act.
In case of culpable breach of an essential contractual obligation Pematech GmbH shall be liable also in case of gross negligence of its employees being not executive officers and in case of slight negligence, in the latter case limited to the damage which is reasonably to be foreseen and typical for such kind of contracts. Further claims shall be excluded hereby.
2.8 Retention of Title
1. Pematech GmbH reserves title to the delivery item until all payments under the contract have been received.
2. You are not entitled to sell, pledge or transfer the delivery item by way of security. In case of levy of attachment and seizure or other disposal by third parties you have to inform Pematech GmbH without undue delay
3. In case of conduct against the contract, particularly in case of late payment, Pematech GmbH shall -after a reminder- be entitled to terminate the contract and to take the delivery item back. You are obliged to surrender the possession.
4. The application for an insolvency proceedings entitles Pematech GmbH to terminate the contract and claim for the immediate return of the delivery item.
Pematech GmbH indicates, that this quotation including its appendices and the information contained therein are protected by copyright and must not be disclosed to third parties. You are not authorized to remove or change confidentiality-, copyright- and other proprietary markings.
In case the above delivery and payment terms are not legally effective or cannot be practiced in whole or in part, the remaining provisions shall not be affected hereby. The contracting parties shall replace the invalid and not enforceable provision respectively by a stipulation, which reflects the commercial worth of the original provision as close as possible.
The substantive law of the Federal Republic of Germany shall be applicable to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Place of performance shall be Radolfzell, Venue of jurisdiction shall be Radolfzell, Germany.
3.1 Component Drawings / Sample Components
Pematech GmbH proceeds on the assumption, that all series production parts will be designed with respect to tolerances and finish (burrs, etc.) in a way, that correct assembly and installation will be possible.
3.2 Component Modifications
Modifications of your components (material, material mixture, shape, tolerances, uniformity surface characteristics etc.), of drawings or possibly of the specification may require adaptations which have not been considered in this quotation. The resulting lower or additional expenses will be notified separately and deducted or invoiced.
For delays and the associated consequential costs which occur for the reasons stated above, the responsibility shall be borne by yourself.
3.3 Condition of Components
Pematech GmbH proceeds on the assumption that your components which are to be processed by the equipment quoted, will be made available in flawless condition (without dirt, oil and foreign objects respectively). The offered scope of delivery does not include any equipment for checking component faults or for component cleaning.
3.4 Customer furnished Goods
You will furnish Pematech GmbH a sufficient quantity of components for testing, putting into operation, preliminary acceptance at our premises and final acceptance on the dates named by Pematech GmbH and harmonized with you, free of charge, freight paid.
This shall apply also for equipment components furnished to Pematech GmbH being received by Pematech GmbH for integration or for completion
Transport-, fire- and liability insurance are to be assumed by yourself.
3.5 General Acceptance Conditions
You shall make available the qualified operating personnel necessary for the acceptance of delivery items in the premises of Pematech GmbH and in your premises respectively as scheduled and free of charge.
3.6 Start-up Service
If you desire a start-up service by specialist staff of Pematech GmbH after the final acceptance, Pematech GmbH will be pleased to submit a corresponding quotation.
3.7 Provision of Service
During the warranty period troubleshooting by a mechanic of the Pematech GmbH shall start within 24 hours after receipt of a written request from your company in case the request is received by Pematech GmbH during Monday to Thursday between 7:00 a.m. and 3:30 p.m.
If the request arrives on Friday between 7:00 a.m. and 3:30 p.m., the troubleshooting can begin only on the following Monday. The same shall apply for national and regional holidays.
To reduce the idle time of delivery items Pematech GmbH offers to set up a modem for remote diagnosis and software maintenance with costs. You have to provide a PC or a programming unit (PG), a telephone connection and an operator.
In case of defects being out of warranty, Pematech GmbH offers a comprehensive service and maintenance contract for the delivery item on request.
3.8 Requirement Profile to the Machine Operator and the Shift Leaders of your Company
These persons shall be capable of
- Understanding the functional sequence of the delivery item and mastering the details, analyzing occurring malfunctions according to the sequencer program as well as correcting electrical, pneumatic and mechanical malfunctions.
- Logically following and isolating occurring malfunctions which cannot be corrected without the help of Pematech GmbH, so that Pematech GmbH can initiate speedy malfunction correction according to the malfunction reports either by telephone support or through service personnel on site.
Before delivery of the delivery item it is necessary that the machine operators of your company will be instructed at Pematech GmbH.