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Terms of delivery

Business conditions of the purchaser which diverge from, or restrict the below-mentioned terms of delivery are valid only, if explicitly confirmed in writing by the manufacturer.

 

    1. Conclusion of Contract
      • The order of the purchaser is valid as of receipt of the written confirmation by the manufacturer. The confirmation of the order is also relevant in regard to the size of the delivery. Secondary agreements are subject to confirmation in writing by the manufacturer.
    2. Price and Payment
      • The prices are, unless otherwise specified, ex factory without packing or assembly and without the manufacturer putting the object into operation at the purchaser.
      • In case of discontinued payments or bill-protest, the manufacturer is entitled to demand immediate payment of the delivery’s total balance, irrespective of the date due agreed upon.
      • The purchaser is not entitled to retain payments or settle the account based on possible counter-claims disputed by the manufacturer.
    3. Delivery Time
      • The delivery time starts with the forwarding date of the confirmation of order, but not prior to the fulfilment of possible advancements bay the purchaser or receipt of the arranged advanced payment.
      • The delivery time is adhered to, when the plant has left the factory prior to its expiration, or notice of dispatch has been given.
      • The delivery time will be extended accordingly in case of labor disputes, especially strikes and lockouts ort he arising of other unforeseen impediments beyond the manufacturer’s control, as long as such impediments evidently influence the completion or delivery of the plant. This also applies when these circumstances occur at subcontractors’. The aforementioned circumstances are not the responsibility of the manufacturer if they occur during an already existing delay. The manufacturer will, as soon as possible, in important cases, notify the purchaser of the beginning and the end of such impediments.
      • If the purchaser has suffered loss due to a delay in delivery caused by the manufacturer, he is entitled to demand compensation for the delay, excluding any further claims. The percentage to be deducted for each week’s delay is 1/ 2%, maximally not more than 5% of the value pertaining to the part of the complete delivery which may not be used in time, or in accordance with the contract.
      • If dispatch is delayed upon the purchaser’s request, the storage fees for each month will be borne by the purchaser beginning one month after receipt of the forwarding advice.
      • Adherence to the delivery time requires that the purchaser has fulfilled the contract obligations.
    4. Testing of Packaging Machines
      • Prior to dispatch each machine will be tested by the manufacturer for correct and trouble-free operation and for this purpose put into operation and tested with the purchaser’s test material. If the purchaser desires to be present during this trial run, he must notify the manufacturer of his intention.
      • The necessary test material must be made available free of charge at the time determined by the manufacturer but not later than 10 weeks prior to the delivery date. Otherwise reclamations concerning the machine’s operation cannot be recognized and delay in delivery cannot be avoided. The same applies in case the test material made available by the purchaser does not correspond to the manufacturer’s determined requirements, or the samples and specimens made available do not match the product in every respect which the purchaser will use for continuous operation of the machine.
    5. Passing of Risk and Acceptance
      • The risk is transferred to the purchaser at the latest upon dispatch of the delivery parts, the same applies for partial delivery, or if the manufacturer has taken over other services such as freight charges or transport or erection. Upon the purchaser’s request and at his expense the manufacturer will insure the freight against theft, breakage- and water damage, as well as against other insurable risks.
      • If delay in delivery is caused by the purchaser the risk is transferred to the purchaser as of date of dispatch. But it is the manufacturer’s responsibility to acquire at the purchaser’s expense, any and all insurance the purchaser desires and demands.
      • Delivered parts will be accepted by the purchaser even if significant deficiencies are apparent without detriment to the rights in section 7.
      • Partial deliveries are acceptable.
    6. Reservation of Owner’s Rights
      • The right of the ownership is reserved to the manufacturer until all payments arising from the delivery contract have been received.
      • It is the manufacturer’s right to insure the plant against theft, breakage, fire and water and other damages at the purchaser’s expense, unless it is evident that the purchaser has taken up insurance himself.
      • The purchaser is not entitled to mortgage or convey the plant as security. In case of confiscation or seizure or other decrees by a third party, he must inform the manufacturer immediately.
      • If the purchaser acts contrary to the terms of the contract or delays making payments, it is the manufacturer’s right, after a reminder, to re-accept and the purchaser must surrender the plant. Maintaining the right of possession and also confiscation of the plant by the manufacturer may not be construed as withdrawal from the contract, unless the hire-purchase law applies.
    7. Deficiency Liability
      • The manufacturer is responsible for deficiencies including lack of features expressively agreed upon, excluding further claims, without affecting section 9, as follows:
      • During the period of 6 months, following the date of the first operation (if multiple-shift, 3 months) the manufacturer will repair or replace at his discretion and choice all those parts which prove to be useless or significantly impaired in their usefulness, provided that it turned out to be based on faulty design, bad materials or imperfect workmanship, which existed prior to the date the risk was passed. When such deficiencies are determined the manufacturer must be notified in writing without delay. Replaced parts will become the manufacturer’s property. If delivery, erection or starting operation are delayed due to no fault of the manufacturer, the liability expires 12 months after the passing of risk. For substantial third party products liability of the manufacturer is limited to the surrender of liability claims he is entitled to from the manufacturer of the third party product.
      • The statutory period of limitation for the purchaser’s right to raise a claim for remedying any defect is 6 months counting from the dated of receipt of the complaint, nevertheless at the earliest upon expiration of the warranty.
      • There is no liability for damages which occured for the following reasons:
        Inadequate or improper use, faulty erection, that is starting operation by the purchaser or a third party, natural wear and tear, faulty or careless handling, inadequate lubrication, exchange materials, insufficient structure work, unsuitable terrain, chemical, electrical-chemical or electrical influences, as far as these are due to no fault of the manufacturer.
      • After notification of the manufacturer, the purchaser must give the manufacturer every opportunity and time for necessary repairs and spare parts delivery, if he does not, the manufacturer is released from the liability. The purchaser is entitled to remedy the defect or arrange the repair at the manufacturer’s expense in case the safety of the operation is endangered and to avoid unreasonably high damages, or if the manufacturer is in delay remedying the defect, whereby the purchaser must notify the manufacturer immediately.
      • The manufacturer will bear the immediate costs for the repair, i.e. spare parts delivery – insofar as the claim proves to be justified – the manufacturer also bears the costs for replacements including freight and the reasonable expenses for dis- and reassembly, furthermore if the situation of the particular case requires, the fees for the availability of his assemble men and assistant workers.
        In other respects the purchaser will bear the costs.
      • The manufacturer is not liable for effects of faulty modifications or repairs done by the purchaser or a third party without prior approval by the manufacturer.
      • Further claims lodged by the purchaser, especially a claim for compensation of damages which did not occur on the plant itself are excluded, as far as legally acceptable.
    8. Liability for Secondary Obligations
      • If the delivered object cannot be used by the purchaser in accordance with the contract, following omission or faulty execution of proposals and advice and other secondary obligations prior to, or after conclusion of the contract – especially instructions for the maintenance of the delivered object – the rules of section VII and IX apply accordingly, excluding further claims of the purchaser.
    9. Purchaser’s Right to withdraw from the contract
      • The purchaser may withdraw from the contract if it is definitely impossible for the deliverer to accomplish the total service before passing of the risk. The same applies for inability of the deliverer..
      • If delay in delivery according to section III of the terms of delivery is apparent and the purchaser grants a reasonable extension of the delivery period when the manufacturer is in delay with the explicit statement that he, after expiration of this term, will deny acceptance of the service and if the extension is not adhered to, the purchaser is entitled to withdraw from the contract.
      • If impossibility arises during delay in acceptance, due to the purchaser’s fault, he is still obligated to render equivalent service.
      • Once a reasonable extension of the delivery period necessary for the repair or replacement of any defect in accordance with the terms of delivery has expired due to the manufacturer’s fault, the purchaser is entitled to withdraw from the contract. The purchaser’s right to withdraw also remains when the manufacturer is unable or incapable to repair and replace.
      • Excluded are, as far as legally admissable, all futher claims of the purchaser concerning change, notice of termination, diminution as well as replacement for any type of damages including such damages which did not occur on the delivered object itself.
    10. Manufacturer’s Right to withdraw from the Contract
      • In case of unforeseen events in the sense of section III of the terms of delivery, the contract will be adjusted accordingly if these events change the economical meaning of the contents of the service considerably or influence the manufacturer’s operation, and in case the completion subsequently turns out to be impossible. The manufacturer is entitled to withdraw totally or partly from the contract as far as these modifications are not acceptable with regards to the economy. The purchaser is not entitled to claim damages based on such a withdrawal. If the manufacturer uses his right to withdraw from the contract he must notify the purchaser without delay after realization of the importance of the circumstances even in case an extension of the delivery time was pre-arranged.
    11. Exclusion of other Claims
      • Other claims, irrespective of the legal basis are excluded insofar as they are not distinctly expressed to the purchaser in these terms of delivery.
    12. Common Terms
      • The place of fulfilment of all obligations arising from the contract is the seat of the manufacturer.
      • For all disputes arising out of the contract, the complaint must be raised before the court competent for the seat of the manufacturer, if the purchaser is a businessman, a corporate body of the public law, or a public legal funds.
        It is the right of the manufacturer to file a complaint at the seat of the purchaser.
      • These terms of delivery remain in effect even if single clauses are suspended or legally ineffective.

Merz Verpackungsmaschinen · Bahnhofstraße 25 · 35423 Lich · Germany
Phone: 0049-6404-9172-0 · E-mail:

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