Terms and conditions Bagmatic® A/S for business transactions with companies 01.05.2014
I. Scope
(1) Our following terms and conditions apply to transactions with persons acting in their commercial or independant professional activity (entrepreneurs).
(2) Our deliveries, services and offers are subject to the conditions below. Opposing or deviating conditions of the customer are not valid. Our terms and conditions are also valid even if we deliver without reservation although we know about contrary or deviating conditions of the customer. Deviations from or conditions required consent in writing.
(3) Our conditions also apply to future goods and services as part of an ongoing business relationship, if we do not confirm deviating conditions
II. Offers and contract conclusion in writing
(1) Our offers are without obligation unless they expressly indicates else. Among other things they only are relevant as long as supplies last.
(2) A contract with a customer is only concluded when we accept the customer’s order by a written order confirmation or execution of the delivery or performance.
(3) Quality or durability warranties, agreements on the quality or statements about or the nature of use of the goods including side agreements, which take place before our order confirmation, are only valid when they are confirmed in writing – if there should be any doubt. Agreements on and information in our offers concerning properties or the nature of use of the delivered item have a higher priority than the information in brochures, packaging designs, demonstration items, drawings, descriptions, price lists and other documents. The latter mentioned informations become invalid by the first mentioned agreements and statements, if they differ from each other. Information on physical properties of wrapping materials, especially the quality, thickness and dimensions e.t.c. are without obligation. These are the details of the producer APPI, Akron Ohio, USA.
(4) Special machines on request of the customer have to be approved by the producer APPI prior to delivery. Costs of any necessary modifications of the machine after it has left the factory will be charged to the customer.
Notes:
a. The product must be tested by Bagmatic to confirm System specifications, bag size, accuracy and production rates. The customer must supply Bagmatic with sufficient quantities of sample products for testing. Bagmatic will only be responsible for product that has been received and evaluated.
b. Condition of product may cause problems with feeding or packaging. Irregular parts may cause jamming; oily parts may damage linings or reduced feed rates.
c. Characteristics of product may cause feeding or funneling issues
d. Bagmatic suggests bag sizes that must be confirmed by the customer in an production environment. Bag sizes may change based upon production data including frequency of jams, missfeeds or spillage. Bags returned to the customer for review may be handmade and may not represent a production sample. For instance, perfs cuts are not present on hand samples. Production samples of various sizes can be supplied for review. Production samples may be provided with the minimum orders for bags.
e. Bagmatic suggests first the funnel size, then the bag size. If bag or funnel size change, then the sizes of the other must be considered and possibly changed.
f. Bagmatic estimates equipment packaging speeds for the benefit of the user. Feed rates and performance will be affected by the quality of parts, loading capabilities, entanglement or other product irregularities. Bagmatic will not guarantee production speeds and will assume no liability for user’s manufacturing costs, loss of profits, products, material or good will, or any other special or consequential damages if packaging speds are not achieved.
g. Modifications, added options or specification charges may be required wich may affect system pricing
h. Any concerns listed should be considered and feedback should be provided to Bagmatic. Customer should also provide a list of concerns to Bagmatic for consideration.
III. Prices
(1) Our prices are, unless expressively agreed otherwise, for the delivery from stock Neuwied, excluding packaging and transport without cost for the assembly, installation and operator training.
(2) Our prices do not include VAT. The legal VAT amount will be indicated seperately in the invoice on its date. We reserve the right to increase our prices to the extent that the costs resulting from changes in currency exchange rates, customer tariffs, taxes, levies, the costs of raw material etc. have been increased at the agreed day of the delivery.
IV. Terms of payment
(1) A payment is only made when we finally can dispose of the amount. For check payments the payment is not effected before the ultimate credit note is sent.
(2) We are against any contrary provisions entitled to set off payments against older debts of the customer. If costs and interest already have incurred, we are entitled first to set off the payment against the costs, then the interest and finally against the principal amount due.
(3) We are not obliged to accept checks. Checks are assumed as a payment. The expenses related to the check are charged to the customer and are due immediately upon billing. We are not responsible for presentation or protest in time.
(4) If the customer has to open a documentary credit, it is applied to the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500th
(5) If the customer does not keep his payment obligations, especially if a check is not cashed or payment is stopped or if he with uncontested claims is in arrears more than 14 days despite a reminder or if it is executed unsuccessfully against him, we are entitled to claim the entire balance due, even if we have accepted checks. In this case we are also entitled to claim prepayments and security performances in respect of all contracts and withdraw from the contract after the fruitless expiry of a reasonable extension of the deadline and to claim compensation for the damages instead of performance.
(6) Any set-off is permitted only with such counter-claims, which are not contested by us or which are officially accepted by declaratory judgement. The customer has no right of retention as long as counterclaims are contested.
(7) The customer will only be granted credit if he by Euler Hermes Credit Bureau is accepted as creditworthy.
V. Delivery Period
(1) Unless otherwise agreed, the delivery times specified by us will be maintained whenever possible, unless it there will occur obstacles for which we are not responsible. e.g. producer’s delay.
(2) Delivery periods begin on the date of order confirmation, but not before all performance requirements, which the customer must produce, are met, especially not before the customer’s documents, packaging design, film, permits and approvals and payment, which according to agreement is due before delivery, have been received.
(3) The deadline is met if the delivery item has left the store Neuwied before the expiry of the deadline, or if the readiness for shipping from store Neuwied has been declared
(4) Disruptions in business operations for which we are not responsible such as strikes, lock outs or other labour disputes, force majeure, unforeseeable disturbances, government interventions, import and export restrictions, shortage of required raw materials we use, disturbances in energy supply etc. both with us or our suplliers prolong the delivery period according to the extent that they checkable have significant influence on the production time or the delivery of the purchased item. We are not responsible for the above mentioned circumstances even if they occur during an existing delay. Beginning and end of such obstacles will in important cases be communicated to the customer as soon as possible.
(5) If we exceed the delivery period for reasons for which we are responsible, we get into late delivery, if the customer after the delivery date in writing requests delivery and we do not deliver within a period of at least three weeks after the request.
(6) If the customer sets a reasonable deadline of at leat 4 (four) weeks for performance or subsequent performance after we already are in default and are responsible for it, he shall be entitled to withdraw from the contract after the expiry of this deadline.
(7) The customer is on our request obligued to declare within a reasonable period of time whether he insists on performance or will withdraw from the contract or will demand damage compensation instead of performance.
(8) If the disturbances mentioned in paragraph (4) above not only are temporary, but make a performance impossible in the long run, we are entitled to withdraw fully or partly from the contract. The customer is not entitled to get compensation on account of such withdrawal.
VI. Transfer of risk and dispatch
(1) The risk of having to pay the full price despite loss or damage of the goods goes to the customer as soon as the goods have left the warehouse or are handed over to the person who is responsible for transport, even if we exceptionally grant other services as for example shipping costs, delivery or installation. The same applies to partial deliveries.
(2) If shipment is delayed due to circumstances for which the customer is responsible, the risk for the goods goes to the customer when the readiness for shipment has been announced
(3) At the customer’s request a transit insurance policy is concluded on his own expense.
VII. Delay of accept
(1)If the customer refuses to accept the goods after a reasonable extension of at least 4 (four) weeks or if he previously has expressly stated not to be willing to accept the goods, we can withdraw from the contract and demand compensation instead of payment in amount of 20% of the contract sum. The customers must provide proof of lesser damage, we reserve the right to prove greater damage.
(2) If the customer delays the acceptance of the goods for more than two weeks, we are entitled to charge a lump sum compensation of 0.25% of the value for each completes week of delay, but not more than 10% of the total value. The customer has the evidence of lesser damage, we have to prove greater damage.
VIII. Retention of ownership
(1) All goods delivered by us stay our property until complete fulfillment of all liabilities of the business relationship, including any future claim. The software contained in our equipment (PLC program, touch screen programs and firmware) is solely the property of Advanced Poly-Packaging, Inc. This software is protected by copyright law and international treaties. Unauthorized reproduction or ditribution of these programs, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maxmium extend possibly under the law. Upon full payment users will be provided with license activation codes. When paying by check or bill of exchange our claims are only met if the corresponding amount is finally credited to us, and a recourse against us no longer is possible.
(2) The customer is, especially in foreign trade, obligued to give all necessary declarations, to make applications and take other necessary and appropriate steps to protect our property.
(3) The customer may use the delivered goods as part of his regular business operations. He has to keep the goods in good condition and to assure that they are kept in accordance with the provisions of the respective country. The customer has to carry out the required maintenance and inspection work in time and on his own expense. In case of damage to the goods the customer already now assigns the claims against the tortfeasor over to us.
(4) The customer may only resell the goods which are delivered by us under retention of ownership if the following conditions are met:
a. We have given our consent for the re-sale in written form or sold the goods to the customer for the purpose of resale.
b. The customer is not in default with his payment obligations to us.
c. The resale takes place in the ordinary course of business.
d. The assignment of the customer’s calims from the resale to us is fully permitted. In case of resale the customer shall for safety’s sake already now assign all claims and rights that arise from the sale entirely to us. As long as the customer is not in default with his payment obligations towards us he is entitled and committed to collect the assigned claims. Our authority self to collect such receivable remains unaffected. However we will not collect the claims if the customer meets his payment obligations towards us. At our request the customer must inform the debtor of the assignment to us and hand us all the documents and all the information necessary for verifying the claim. If the customer collects the assigned claim without beeing entitled to this or uses it for other purposes we are entitled to collect the full revenue od the sale which he has achieved.
(5) Goods under our retention of title must neither be left as security to third parties by the customer nor be pledged, unless we have given our expressly written consent. The customer is obliged to inform us immediately in writing of any attachment of the goods by third parties and any negative impacts on our rights.
(6) By processing of supplied packaging material, the customer acquires no ownership of the entirely or partly processed goods. The processing happens exclusivley for us. However, should the retention of the title extinguish due to any circumstances, we have already now agreed that the ownership of the processed goods passes to us. The customer remains unpaid depositary.
(7) In case of breach of contract by the customer, especially in case of payment or if there are opened insolvency proceedings about the customer’s assets, or if such proceedings are requested, we are entitled but not obliged to take back the goods delivered. The withdrawl means no withdrawl from the contract unless we declare this in a writing. If the customer does not meet our request to return the goods to us, he owes us a usage allowance of 5% of the purchase price of the product for each commenced month of delay, plus the respective statutory value added tax. We do not exclude an assertion of further damage.
(8) We commit ourselves to release the securities insofar as their value exceeds the claims to be secured, by more than 20%. we are entitled to choose the securities to be released.
IX. Rights of the customers in case of defects, liability
(1) The customer’s rights in case of defects depend only on the following provisions. Further claims by the vustomer are excluded.
(2) The customer ensures that his for us available patterns, models, drawings and other informations are appropriate, have the accurate dimensions, match the actual conditions and do not infringe rights of third parties. If this is not the case, the customer has to reimburse the additional occured expenses. If there at the place of use are exceptional climatic conditions, eg. temperatures below 15°C or 35°C and relative humidity bwloq 40% or above 90% the customer has to inform us about it when ordering. For damage and defects, which are based on false or incomplete specifications of the customer, we assume no liability.
(3) We do not accept liability for damage and defects caused by intended or excessive wear and tear, faulty or negligent handling by customers or third parties (such as excessive use, faulty assembly or commissioning), improper materials, resources or wrapping materials, not original or not suitable replacement materials, defective construction work, unsuitable building ground, weathering, chemical, electromechanical or electric influences (such as power fluctuations), unless these circumstances are attributable to any of our faults. The same applies to non-reproducible software errors. Only minor deviations from the agreed properties , especially the commercial tolerance of quantity and quality do not constitute defects.
(4) The customer has to reprimand obvious defects in writing within two weeks after delivery. For merchants apply the statutory provisions of the Danish “Købeloven” and the duty of inspection and reprimand which herby arises. These deadlines are exclusive deadlines. These provisions are equivalent to the statutory provisions for the German merchants (HGB §377) in Germany.
(5) If there is a reasonable, proper and timely reprimand of defects, which already existed at the time of the transfer of risk, we provide at our own choice the remedy of the defect or the delivery of confirming goods against return of the defective Goods.
(6) We can only guarantee that the goods delivered in the land of the local delivery do not infringe intellectual property rights and copyrights (hereinafter IPR) of others. A deficiency is nor present when and if the customer is responsible for an infringement to IPR of others or if the customer’s infringement to IPR happens by for us not foreseeable use of the goods or by the fact that the delivered item is altered by the customer or is used together with products which have not been delivered by us. If a third party rises legitimate claims for infringement to IPR against the customer because of goods we have delivered and which have been used according to contract the customer must inform us immediately in writing about this and arrange his defenses with us. In the case of a legitimate property right defect, we will at our option either care for a right to use or modify our performance so that the property right is not infringed or exchanged the item (replacement). The same applies for other defects of property rights.
(7) If we deny a remedy, or it fails or is unreasonable for the customer, the customer may cancel the contract or reduce the purchase price.
(8) The client can raise as part of the law claim damages, if a defect is fraudulently concealed, or exceptionally, if we have given a quality guarantee. Further compensation calims due to defects of the delivered goods are excluded, unless one of the exceptions to Section X, paragraph (2) and (3) is present.
(9) Customer claims for defects shall expire in 12 months from the transfer of risk to the extent we are not liable for willful misconduct. This limitation applies to any claims, particularly claims for compensation for consequential damages related to any eventual defect.
(10) Customer’s claims for expenses which have the purpose of supplemetary performance, in particular expenses for transport, travel, labour and material costs are excluded to the extent that expenses are increased because the delivered goods have been moved from the customer’s address to another place, unless thsi complies with the intended use.
X. Liability, damage compensation
(1) Unless these terms and conditions indicate otherwise, customer’s claims for damage compensation and claims for reimbursement of expenses of any kind (hereafter collectively called “Damage Claims”) for whatever legal reason, are excluded. For this reason we especially are not liable for the customer’S lost profits or other financial damages.
(2) The exemption from liability under Section 1 shall not apply to damage
- of injury to life, limb or health caused by a at least negligent breach of duty, for which we are responsible.
- for which we are liable under the Product Liability act or
- based on a least grossly negligent breach of duty by us or our legal representatives or agents.
(3) The liability release does not continue for any damage based on a at least negligent violation of a contractual cardinal obligation, for which we are responsible, if the achievement of the purpose of the contract by the violation is in danger. If there are defects they have to be serious in order to be dangerous. An endangering by defects of this kind is earliest the case if the requirements of Section IX, Paragraph (7) are given. In case of a violation of the contractual cardinal obligation, our liability is limited to the typical, predictable damages, unless caused by intent or gross negligence or unless the damage is caused by at least negligent injury to life, limb or health.
(4) To the extent our liability is excluded or limited, thsi also applies to the personal liability of our enmployees, representatives and agents.
XI Additional conditions for deliveries involving installation
(1) Cost and Risk
If we shall install our delivered packaging machines for the customer, the installation is done at his expense and risk. All expenses that arise, eg. for any overtime, Sunday and holiday work shall be reimbursed by the customer. This apllies also for incidental travel and waiting time. Anything else applies only if a lump sum is expressly agreed in writing.
We recommend that Bagmatic installs all systems which 1) include a printer, 2) have customizations, or 3) are more complex systems.
(2) Working Conditions
The customer has to take the necessary measures to protect persons and property at the installation place to ensure decent working conditions. He has to support the assembly personnel in their work at his expense.
(3) Technical assistance provided by the customer
The customer is committed at his own expense to provide required technical assistance, particularly for:
a) Implementation of any construction work in sufficient time prior to the installation of packaging machinery can be started immediately after delivery and executed without delay. The base beneath the machines msut be completely dry and set, and the place in which the installation is made, must be suitable protected against weather, well lit and adequately heated.
b) providing dry, lockable and illuminable rooms under surveillance and supervision for storing of machine parts, tools and others.
c) Provision of heating, lighting, power, compressed air including the necessary connections.
d) provision of sufficient number of auxiliary personnel (eg. electrician) which we consider necessary for the required assembly time and the presence of a subsequent operator of the machine. The latter is alos necessary even if the machine later is set up at another location.
e) providing of required equipment and materials for the installation and commissioning of the machines, eg. Packaging patterns and wrapping materials or customization of software for the customer in some machines with printer, if the provided functional software is not intended to be used.
f) Loading and transport of necessary items for mounting depending on the type of installation. If the customer does not meet his obligations, we are entitled but not obligued to do the customer’s dutoes in his place, and at his expense. Apart from this our statutory rights remain unaffected.
(4) Assembly period
(a) If an installation date has been agreed upon, its compliance presupposes, that the customer meets his onligations. The assembly time is met when the packaging machines supplied by us is ready for operation.
(b) For an extension of the installation period and our liability in case of delay applies Section V. of these General Terms and Conditions in accordabce with the proviso that the lump sum damage compensation per day is 2% of the estimated installation costs and the maximum amount of damage compensation is limited to twice the estimated installation costs (Section V. paragraph 5 of these Generla Terms and Conditions)
(5) Compensation by the customer
If our equipment or tools get damaged or lost during transport or at the place of mounting without any fault of ours, then the customer is obligated to pay compensation for such damages. Damage due to normal wear and tear is not taken into consideration.
XII. Applicable Law, Place of Jurisdiction
(1) The Danish law including the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies for these terms and conditions and for the entire legal relations btween the customer and us.
(2) In business transactions with merchants, legal persons under public law or special funds under public law the place of jurisdiction for all disputes, inlcuding bills exchange and check claims, is the Maritime and Commercial Court Copenhagen. However, we are entitled to sue the customer at the court of his place of business.
(3) Unless the order confirmation does not state otherwise, the place of jurisdiction is the courtat our place of business.
XIII Warranty
When Bagmatic and the customer have complied to all the above mentioned terms and conditions and the customer thus is the owner of the machine(s) delivered by Bagmatic, Bagmatic offers the following warranty:
1. Maintenance warranty of six months
The maintenance warranty means, that Bagmatic’s technicians repair the machines incl. the necessary spare parts without costs for the customer, unless the customer did not treat the machine(s) according to its (their) purpose during the first six months of his ownership. (See chapter IX,6)
If it is provided that he customer did not use the machine(s)according to its (their) purpose or did not comply to the conditions mentioned in chapter IX,6, the customer has to pay the total costs for the technician(s) including transport cost, wages, food and lodging as well as spare parts. Wear parts are not covered by the maintenace warranty.
2. General warranty of 18 months after the maintenance warranty
After the first six months of the customer’s ownership of the machine(s) Bagmatic offers the necessary spare aprts to repair the machine(s). However the customer has to repair the machine(s) himslef as this warranty does not include expenses for the technician(s). Bagmatic is willing to reapir the machine(s), but the customer has to pay the expenses for the technician(s) as mentioned in section 1.
XIV. Final Provisions
(1) Should one or more provisions of these terms become invalid, the remaining provisions shall nevertheless reamin effective to full extent. The invalid provision shall be replaced by an effective one which is most closely realizes its intended economic purpose as far as possible.
(2) Our terms and conditions apply until the business relationship is completed.
(3) We point out that we store the data of the customer as part of the purpose of the contract relationship.
