General Terms and Conditions of PKM Packaging GmbH

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1. General

1.1 The following conditions are valid for all offers made by us and for all resulting transactions concluded with the customer; this also applies when these arrangements have been concluded electronically. General Terms and Conditions of the customer apply only when we have expressly agreed to them in writing. Where framework agreements (in particular global agreements) between the customer and us already exist, the provisions in these General Terms and Conditions that differ from those in the framework agreement do not apply.

1.2 Pirmasens (Federal Republic of Germany) is the place of performance for both parties and for all claims resulting under this agreement. Customary trade provisions (such as ex works) are interpreted in accordance with the contractual definitions of the International Chamber of Commerce valid at the time the contract was concluded.

1.3 Our order confirmation is authoritative for the content of the agreement, in particular for prices, scope of performance, quality of performance, performance time, other deadlines and commercial considerations. All other arrangements are only subordinate. By acceptance of performance, or part thereof, the customer accepts the terms of agreement as provided in our order confirmation. Subsequent amendments to the agreement are valid only when confirmed by us in writing.

1.4 Images, sketches and other representations of our machines or accessories, or spare parts, are for purposes of general illustration only. They are not binding on the design and technical implementation; this applies especially to dimensions and weights. We reserve the rights to design and to technical implementation. Upon confirmation of the order we make dimensional sketches available. We reserve a copyright on technical drawings, documentation and other materials. These may not be made available to third parties.

1.5 Any deliveries to the customer are subject to a correct and timely delivery to ourselves, also with regard to the required raw materials and base products for the products to be delivered to the buyer. Should this not take place, or not take place in a timely manner, we will inform the customer thereof and are entitled to withdraw from the agreement within an appropriate period of time.

2. Prices and Payment Conditions

2.1 Our prices are stated without discounts or other rebates from our plant in Pirmasens, and exclude packaging, freight, insurance and the statutory VAT.

2.2 If custom made products requiring the use of new technology or procedures result in additional costs, we are entitled to adjust the agreed price in accordance with the amended costs; delivery times and payment terms must revised. This provision is applicable only when expressly referenced in the order confirmation. In this event the order confirmation will describe the state of the technology which is the basis of the initial price.

2.3 After expiry of the agreed payment term we may charge interest in accordance with our bank’s lending rate; the customer is entitled to prove that the damage sustained by us through the delay was not incurred or that is was considerably lower than the flat rate payment. We accept money orders, checks, bills and any other means of payment only on a preliminary basis subject to a final credit made to our bank account. Discounting and prolongation of bills does not count as fulfilment.

2.4 If the customer neglects an incumbent obligation and thereby renders us unable to complete performance, or it does not make payments on time or otherwise defaults on its payments, we can set the customer a reasonable deadline for contract compliance with the threat of termination of the agreement should compliance not be forthcoming; this deadline is also deemed to be a reminder in accordance with § 286 German Code of Civil Law (BGB). Should the agreement not be fulfilled by the expiry of this deadline, we can terminate the agreement and otherwise dispose of any contract object.
In the event of such a termination we can demand the full purchase price. Payments already made as well as the value of parts that can otherwise be used without modification are to be deducted from this amount. If the non-complying conduct of the customer is the result of force majeure, we can demand costs incurred prior to termination of the agreement as well as costs that we can no longer avert, only. Further legal rights and claims (e.g. claims for damages in the event of culpable breach of duty by the customer) remain unaffected.

2.5 Should we become aware of circumstances relating to the customer / user, or relating to their country, in which our claims no longer appear to be secured on a commercial basis, we are entitled to perform our obligations under the agreement subject to advance payment or provision of collateral by the customer. If, after the setting of reasonable time period, the customer does not comply with our demands within the time period, we are entitled to withdraw from the contract.

2.6 Offsets or withholding of payments based on claims by the customer, e.g. warranty claims, are precluded unless such claims are not contested, are ready to be decided or are legally established.

3. Retention of Title

3.1 Delivered goods remain our property until all requirements of the agreement have been satisfied. The customer is responsible for insuring the delivered goods.

3.2 If the delivered good subject to our retention of title is attached by a third party, we are to be sent a copy of the attachment order without delay.

3.3 If the law in the country where the delivered goods are located does not recognise retention of title, but allows the seller to reserve other rights regarding the delivered goods, we may exercise all rights of this kind. The customer shall cooperate with all measures that we apply to protect our ownership rights, or to equivalent rights concerning the delivered goods.

4. Performance Period and Performance Delay

4.1 Insofar as no acceptance of the delivered goods is agreed, a designated delivery date is complied with if the delivered goods have left our premises or the customer has been informed of its readiness for dispatch by the delivery date. Unless expressly defined as binding, delivery times and dates are understood to be non-binding. If no delivery date or time is specified, then in case of doubt this amounts to six weeks after issuance of the order confirmation.

4.2 The customer may not refuse independent partial deliveries.

4.3 Compliance with the delivery date given in the order confirmation is dependent upon the active cooperation of the customer in the clarification of all technical and commercial details. Our compliance with the deadline specifically implies that the customer:
– Returns a signed copy of the order confirmation, wherein the date of receipt by us is controlling;
– Requires no technical or commercial changes;
– Delivers sample material in conformity with our specifications on time and in sufficient quantity (see also Number 5.1);
– Completes and/or clarifies all formalities which are necessary for the proper functioning of transport, import and payments in a timely manner, in particular the obtainment of import licences and letters of credit;
– Makes the agreed payments in a timely manner, whereby the credit to our account is controlling;
– Performs acceptance on the agreed date (Number 5.3)
Should the active cooperation of the customer not be forthcoming, we reserve the right to an appropriate extension of the performance period.

4.4 Except for the cases provided under Number 4.3, we can extend the period of performance commensurate with obstacles beyond our control or beyond the control of our sub-contractors (such as strikes, lock outs and force majeure) in so far as these events affect compliance within the performance period.

4.5 If we are in delay in performance, the customer can set an extension. This period is to be half of the original performance period, but at least 5 months. This does not apply to delivered goods that are specifically designed for the customer; here the extension period is ¾ of the original performance period, but at least 9 months. After expiration of the extension period the customer may withdraw from the agreement if it threatened to do so at the time the extension was set. Payments already received will be refunded.

4.6 If our delay results in damage to the customer, it may request compensation in accordance with Number IV. 4 of the delivery conditions of the German Machinery and Plant Manufacturing Association (VDMA). For each full week of delay this amounts to 0.5%, up to a maximum of 5%, of the value of the parts of the delivered goods that could not be used in a timely manner or could not used in accordance with the agreement due to the delay. Additional claims for damages exist in accordance with Number 8.

5. Functional Scope and Functional Tests

5.1 Products to be delivered to the customer are tested by us prior to delivery. Subject to individual agreement with the customer, contract products are only those which can be processed in commercially available packaging materials in the size and character quoted in the specification.

5.2 If acceptance of the delivered goods has been agreed to take place in our factory and the customer does not appear on the agreed date, acceptance is cancelled. If we delay acceptance up the request of the customer, it shall bear the corresponding additional costs.

5.3 The customer shall examine the delivered goods for damages and completeness upon delivery of the goods at its works. Damages are to be reported to us without delay. Without timely and proper compliance with these formalities the customer may assert no claim against us. The customer shall document reported defects in photographs. At our request a claims adjuster will be engaged.

5.4 Upon request and at extra cost, we provide technically qualified personnel in accordance with the applicable supplementary conditions on the printed overleaf. The deployment of such personnel is carried out within our capabilities. Our personnel are to be used for the agreed work only and shall be deployed when all required preparations on the part of the customer have been made. Required assistants, power and tools shall be provided to our personnel free of charge.
The customer shall arrange accommodation for our personnel which conforms in terms of facilities, catering and personal safety to western European standards. The same standard applies to transporting our personnel to and from the operational site. Travel and idle time of our personnel count as working time.

6. Defects

6.1 Our performance is free from defects if its actual nature differs only slightly from the contractually agreed nature and this difference is not unreasonable for the customer.

6.2 We provide the following warranty regarding the absence of defects from our performance:
All reported defects in accordance with Numbers 5.4 and 6.4 are to be remedied free of charge to the customer either through repair or replacement with proper replacement parts (rectification) at our option; Number 5.5 paragraph 2, sentence 2 applies accordingly. The customer is to return defective parts upon request. If a quality rectification is not possible, we will discuss this with customer.
As far as is reasonable for the customer and in satisfaction of our rectification obligation, we may provide other delivered goods or solutions from our programme that in total, evince the agreed to characteristics or in the absence of an agreement on characteristics, demonstrate a defect-free nature of the contract object as defined by law (§§ 434 Section 1, 633 Section 2 BGB).

6.3 The warranty period is 12 months from acceptance (see below) or, if acceptance is not necessary, from delivery of the contract object to the customer. This does not apply to damage claims by the customer as provided for in Number 8.1 and shall not apply insofar as the law provides for longer periods in §§ 438 Sections 1 and 2 (Buildings and items used in buildings), 479 Section 1 (Right of recourse) and § 634a Sections 1 and 2 (Building defects) BGB. Acceptance in the above sense is considered complete when the customer does not refuse acceptance within three months after delivery, stating its reasons relating to the respective delivered goods / work.

6.4 Liability arises only when the customer provides notification of the defect promptly upon discovery. Number 2.6 applies to the offsetting and withholding of payments.

6.5 The customer may not by itself or via any third party remedy any defect without our written consent. This does not apply in urgent cases of danger to operational safety, or in order to prevent disproportionately greater damage, or where we are behind schedule in rectification; however, even in such cases we are to be informed promptly. If the customer itself, or via a third-party, may remedy any defects, it is entitled to reimbursement of reasonable costs for the remedial measures.

6.6 We provide no warranty if:
a) The customer’s packaging materials and packaging products do not correspond to the requirements provided by us;
b) The customer changes the delivered goods (Number 6.5, sentence 2 remains unaffected);
c) The delivered goods were not installed by our personnel, or were installed or put into operation against their instructions;
d) Our operating and maintenance instructions have not been followed or the delivered goods have in some other way been inappropriately handled;
e) We have not received adequate time or opportunity for rectification;
f) Defects can be attributed to normal wear and tear.

6.7 For parts of the delivery not manufactured by us, for example all electrical and electronic parts, we accept liability only to the extent we can make warranty claims against the suppliers.

6.8 The customer shall inform us in a timely manner when the delivery goods are subject to unusual circumstances (e.g. climatic, location or operational nature) or are used in a multi-shift operation. The customer acts at its own risk upon failure to provide us with appropriate notice.

6.9 Should rectification (including multiple attempts) fail, or be refused by us, or is not reasonable for the customer, or setting a deadline is not required in accordance with §§ 281 section 2 and 323 section 2 BGB, the customer may at its discretion appropriately reduce the remuneration or, without the otherwise required deadline for rectification and its unsuccessful expiration, withdraw from the contract in light of the degree of the defect and if we cannot demonstrate our lack of fault, may demand damages or reimbursement of expenses under Number 8 in accordance with § 284 BGB, unless we could not have expected this.

6.10 Upon our request, the customer is obliged to declare whether it still insists upon performance and/or which rights held by it are being asserted, within an appropriate timeframe set by us in writing. Should the customer not comply with this obligation, the exercising of these rights or claims requires the unsuccessful expiry of a time period set by the customer on us, in writing, to rectify if we have not previously refused rectification in a final manner. Our statutory remedies for damages remain unaffected.

6.11 The customer’s statutory right of withdrawal due to a defect of the contractual object does not imply any fault on our part. In all other cases involving a breach of duty, the customer may withdraw from the contract only if we are responsible for the breach of duty.

7. Special Conditions for E-Commerce

7.1 The customer must ensure that with respect to existing customer accounts for its company, only those employees of the customer who are authorised to do so shall place electronic orders.

7.2 The customer is to ensure and to urge its employees not to give passwords and user passwords for the use of its customer account to third parties. It is
also to ensure strict confidentiality and safeguarding of this information against access to or knowledge of by unauthorised parties.

8. Liability

8.1 The following Numbers 8.2. to 8.5 apply to claims for damages of any kind regardless of the legal grounds on which they are based (e.g. liability for defects, delay, breach of other obligations arising from contractual and other obligations, impossibility, unauthorised actions, etc.) but not for:
– Claims for damages resulting from injury to life, limb and health,
– Rights and claims of the customer due to fraudulent concealment of defects by us or due to a quality defect of something for which we have given a guarantee,
– Rights and claims of the customer based upon intent or gross negligence by us, our legal representatives or agents as well as
– Claims under the Product Liability Act.
The statutory provisions remain applicable to the exceptions set out above.

8.2 In the event of negligent infliction of damage we are liable only for the infringement of material rights and obligations arising from the nature of the agreement and violation of which endangers the purpose of the agreement. Otherwise, our liability is excluded in cases of minor or simple negligence as the cause of damage.

8.3 When there are grounds for liability for the violation of material contractual obligations in accordance with Number 8.2, these are limited to the amount of typical damages foreseeable by us at the conclusion of the agreement.

8.4 Liability in accordance with the above-referenced provisions for typical damages foreseeable by us at the conclusion of the agreement are limited to the amount of coverage provided in our operating / professional liability insurance. These cover two claims for damages per calendar year in the respective amount of 5, 000,000 EUR for damage to property 500,000 EUR for pecuniary loss.

8.5 Claims for damages by the customer shall expire – unless a shorter period is set by statute –
– In the event of liability for defects (Number 6), with expiration of the deadline specified in Number 6.3 sentence 1,
– In all other cases one year, beginning with the end of the year in which the claim arose and which the customer obtained knowledge of the circumstances which establish the claim and of the identity of the responsible person or should have obtained knowledge thereof without gross negligence. Regardless of knowledge, or grossly negligent lack of knowledge, these claims expire 5 years after they arise and without consideration as to when they arise and knowledge thereof or grossly negligent lack of knowledge, 10 years after the commission of the act, breach of duty or other event triggering the damage (maximum period).

9. Burden of Proof, Disputes and Applicable Law

9.1 Our Terms and Conditions do not change the statutory allocation of the burden of proof at the expense of the customer.

9.2 The legal venue for all disputes arising under agreements covered by these Terms and Conditions is the Regional Court in Zweibrücken, Germany.
However, we may sue the customer at the location of its registered office.

9.3 German law shall apply exclusively with exclusion of the conflict of law rules of international private law and of the UN Convention in the International Sale of Goods (CISG).

For Provision of Services:

In accordance with contractual agreement or upon special request, our service technicians will provide installation, overhaul and repair services of equipment supplied by us. Services beyond those listed above can be provided with prior agreement.
Our service technicians provide their services on the basis of our general Terms and Conditions, printed overleaf, and the following supplementary conditions for services:

1. Our service technicians are not authorised to make legally binding declarations in any form.

2. Should we be commissioned with work other than the installation, overhaul and repair of the equipment supplied by us in accordance with the enclosed operating instructions, and should this additional work be intended to, or result in, material changes to the machines, we reserve the right to carry out a safety review procedure in accordance with the German Equipment Safety Act (GSG) and the relevant legal regulations at the cost of the customer.
As a result of the non-performance of a required safety review procedure, no rights or claims – regardless of the legal basis – can be derived against us for not carrying out a new safety review procedure if the failure is not a result of intention or gross negligence and does not result in injury to life, limb or health.

3. In order to plan the work of our service technicians in the long-term and to ensure the smooth running of the provided services, requests for services are to be made in good time – at least four weeks prior to commencement. We are in no way liable to recourse if the customer does not plan ahead in a timely manner as is necessary for the disposition of our service technicians, and as a consequence we are unable to undertake a timely deployment, for example, by dispositions undertaken by administrative staff, force majeure or lack of suitable personnel.

4. Estimations provided by us in response requests regarding the deployment duration and costs are only approximations and are not binding.

5. In the event that the scope of the engagement is expanded, an appropriate extension of the implementation period for the services will be agreed separately.

6. Orders for service technicians, spare parts and accessories should be made in writing using the order number.

7. At its own expense and responsibility, the customer is obliged to undertake the following preparations:
a) Transport of the machines to the installation site. Damage incurred during transport must be reported to us immediately.
b) Preparation of the plant
The unit must be unpacked and degreased without using harsh solvents that could damage the various machine parts or the paintwork. In the event of machine overhaul and repair, the machine is to be cleaned and made easily accessible. Energy supplies to the machine must be made available.
c) Preparation of work materials
The accessory containers are to be opened, the spare parts cleaned and stored in the vicinity of the machine. When unpacking, make sure no small parts are lost.
d) Workflow preparation
All ancillary parts of our machines for material loading, filling, dosing and product removal should be set up so that they are easily accessible and that adjustment and maintenance work can be carried out without hindrance.
e) Provision of tools etc.
The customer shall make available, free of charge:
– The necessary auxiliary equipment for the work such as lifting tools, scaffolding poles, ropes etc. as well as adequate equipment including a workbench with a bench vice in the direct vicinity of the machine.
– Where required, staffing assistance by bricklayers, fitters, handymen, carpenters etc. The support staff are to abide by the instructions of our service technician. It is recommended that two technically skilled and experienced persons, who will later operate the machines, accompany our technician.
– The raw materials to be processed, such as filling and packaging materials (including adhesives) for continuous industrial operations in the duration required by the customer for instructional purposes of its operating staff (quality and dimensional accuracy of the packaging materials and aids must correspond to those agreed to or recommended by us).
– The required power sources (e.g. electricity, water, compressed air, steam) as well as lighting and a lockable room for the storage of valuable machine parts and tools etc.
The above-referenced preparatory measures shall be carried out in time to allow the service technician to start work immediately upon arrival at the customer.

8. In addition, the customer undertakes to inform us in a timely manner and in writing about the currently valid local legal and official safety regulations, insofar as they are to be observed by and complied with by our service personnel. All safety equipment such as protective clothing, safety shoes etc. must be made available free of charge by the customer.

9. Unless otherwise agreed, the customer accepts with the commencement of work by our service personnel that work performed at its instruction which extends beyond that agreed in the order is performed at its sole cost and responsibility. In this respect, the customer expressly releases us and our employees from all corresponding contractual obligations.

10. During on site work, the service technician will adhere to the customer’s working hours and the plant’s regulations. In urgent cases overtime may be required; nevertheless the working day of our service technicians is generally limited to a maximum of 12 hours.

11. If no hotel accommodation is provided for our service personnel close to the site or that can be reached by public transportation within half an hour, the customer is to provide a vehicle. Suitable accommodation can be viewed as a single heated room with shower and toilet facilities.

12. As part of the billing for services, the service technician is to provide the customer with a list of hours worked. The customer’s binding signature confirms the correctness of the hours worked the proper handover of a functional machine and the proper execution of special services.

13. Should the service work be disrupted or interrupted due to circumstances outside our control, all resulting costs (including idle periods) are borne by the customer. This applies for example, when disruptions in upstream or downstream external components occur, even when our service technician was tasked with their connection and construction.

14. Our liabilities for defects as well as other liabilities are based upon Numbers 4, 6 and 7 of the Terms and Conditions printed overleaf.

15. In the case of all services performed on machines, the rights of ownership in built-in components, spare parts and accessories remain with us until full payment of the parts and services.

16. Taxes arising in association with the services performed in the customer’s country shall be borne by the customer.
The customer is to appoint an authorised contact person

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