General Terms of Delivery – New Machines, Used Machines, and Extensions
Definitions
DG press: DG press ServiceS B.V., the User of the General Terms and Conditions;
The Buyer, Client, Customer: DG press counterparty;
Agreement: the Agreement between DG press and the Customer.
Article 1. General
1.1. These Terms and Conditions will apply to all offers, quotations and Agreements regarding new machines, used machines and extensions between DG press and the Client, to the extent that the parties have not expressly deviated from these Terms and Conditions in writing.
1.2. Any deviations from these General Terms and Conditions will be valid only if those deviations have been explicitly agreed in writing.
1.3. If DG press concludes Agreements with the Client more than once, the present General Terms and Conditions will apply to all subsequent Agreements, irrespective of whether they have been explicitly declared applicable.
1.4. Any applicability of any terms and conditions of the Client is hereby expressly excluded.
1.5. If one or more provisions of these General Terms and Conditions are null and void or are nullified, the remaining provisions of these General Terms and Conditions will retain their full effect.
Article 2. Offers and Agreements
2.1. Any offers made by DG press will be without obligation. DG press will not be bound until it has accepted an assignment in writing. Agreements to which DG press is a party will not be presumed to have been concluded until DG press has accepted in writing an order placed by the Customer.
2.2. Any illustrations, catalogues, drawings and recommendations issued or provided will not be binding and will remain DG press’s property. The recipient will be responsible for ensuring that they will not be copied and/or provided to or made available for inspection by third parties. DG press will not be obliged to provide any detail drawings.
2.3. Weights, measurements, capacities, prices, returns and other data, contained in catalogues, prospectuses, circular letters, advertisements, illustrations, price lists and other textual descriptions will be indicative only.
2.4. If, prior to the Agreement’s conclusion, DG press has shown or given the Customer samples or test results, they will be presumed to have been shown or given as indications only.
2.5. The production equipment described will be in accordance with the design that applied on the offer date. DG press reserves the right to change the design or manufacture of its products if, in its opinion, such change does not negatively affect such products’ quality or functionality.
2.6. The scope and price of any contract extras relating to the Agreement should always be agreed in writing.
2.7. DG press may refuse an order or part of an order or attach conditions to an order.
Article 3. Price
3.1. Any prices stated by DG press will be exclusive of turnover tax and any other government levies relating to the sale and supply and will be based on delivery in accordance with the relevant actual Incoterms that apply on the date of the offer. Any reference to a deviating delivery provision contained in the Agreement should be understood as a delivery provision in accordance with the Incoterms.
3.2. The Agreement will grant DG press the authority to charge the Customer separately for any contract extras performed in the context of the assignment, as soon as the amount due is known and has been confirmed by the Customer. This is including but not limited to waiting hours and delay where the cause lies with the Customer,
Article 4. Delivery
4.1. The goods will be delivered in accordance with the relevant actual Incoterms referred to in Article 3.1, packaged insofar as necessary in view of the mode of transport to the destination. DG press will be permitted to effect partial deliveries.
4.2. The agreed delivery term will commence on the date of DG press irrevocable receipt of the agreed down payment or acceptance by DG press of a Letter of Credit. If a term is exceeded, the Customer must give DG press written notice of default and grant it a reasonable period of time to comply as yet. If the delivery term is exceeded, this will not entitle the Customer to fully or partially dissolve of the Agreement, unless and insofar as any gross negligence has occurred on DG press’s part.
4.3. The following circumstances will suspend the delivery term:
4.3.1. the Customer’s non‐performance of any payment obligation it has;
4.3.2. the Customer’s failure to provide the data required for the commencement and performance of the work on time; and
4.3.3. any events of force majeure as described in more detail in the Article providing for force majeure.
4.4. Any contractual penalty imposed in respect of an exceeding of the delivery term will be presumed to replace any right the Customer may have to damages.
4.5. The Customer will be obliged to take delivery of the purchased goods upon their delivery to it or upon their being made available to it under the Agreement. If the Customer refuses to take delivery or fails to provide information or instructions required for the delivery, the goods will be stored at the Customer’s expense and risk.
4.6. DG press may suspend its performance of its obligations if, following the Agreement’s performance, it learns of circumstances that give it good grounds to fear that the other party will not perform its obligations vis‐à‐vis it.
Article 5. Acceptance
5.1. The Customer will be presumed to have accepted the goods:
5.1.1. after start‐up commercial production or
5.1.2. if DG press performed a Site Acceptance test with an agreed commissioning protocol (SAT) after signing of this, or a maximum of 180 days after shipment of the press, whatever comes first, unless agreed otherwise in writing.
Article 6. Safety
6.1. All new and remanufactured goods supplied by DG press will be supplied in accordance with the CE safety standards and regulations that apply in Europe, which are intended to guarantee safe working conditions for the Customer’s employees. DG press will make an effort to find technical solutions for any additional requirements set by the authorities in the Customer’s country, at the Customer’s expense and risk.
For goods supplied in an As-Is, Checked and Repaired or Refurbished state, the CE certification of the original manufacturer applies.
6.2. Compliance with many safety regulations is affected by factors over which DG press has no or little control, such as the system, lay‐out, acoustics, materials used in the process, process procedures, safety procedures, maintenance, training and production management. In this context, DG press cannot guarantee that the goods will comply with all local standards. The Customer will be responsible for having the goods inspected by local authorities in charge of safety and working conditions, before the start‐up.
Article 7. Software; right of use and ownership
7.1. If the supply also includes software – defined as computer and operating applications, recorded in any way in a form that is readable by the computer or operating unit – and the corresponding documentation, including any new versions that are to be made available, DG press will grant the Customer a non‐exclusive, non‐transferable right of use in respect of this software.
7.2. The ownership and all industrial and intellectual property rights in respect of the software will at all times remain vested in DG press or the supplier that has granted DG press the right to make the software available to the Customer. The Customer may not remove any copyright designations. The Customer is aware that the software contains confidential information and industrial secrets of DG press or the supplier and shall ensure that the software is kept confidential and is not disclosed to third parties. DG press will be free to take technical measures to protect the software.
7.3. The Customer will not be permitted to alienate, encumber or change the software, to allow third parties to use the software or to use it for third parties.
7.4. The software’s source code will not be made available to the Customer.
7.5. The right of use will take effect on the installation date and will end upon the equipment’s alienation or its final decommissioning, of which DG press should be notified.
Article 8. Ownership
8.1. The ownership of the goods will not pass to the Customer until the Customer has performed all its obligations under the Agreement concluded with DG press.
8.2. The goods remain property of DG press until all payments are effected by the Customer.
8.3. The Customer will not be entitled to alienate or encumber the goods or otherwise bring them under the control of third parties before their ownership has passed to it.
8.4. As long as the retention of title applies, DG press will be entitled to unhindered access to the good/goods. The Customer will render all cooperation to DG press to enable DG press to exercise the retention of title laid down in paragraph 1 by recovering the goods, including any necessary disassembly.
8.5. If third parties wish to create or enforce any rights with respect to the goods supplied subject to the retention of title, the Customer will be obliged to inform DG press thereof as soon as may reasonably be expected.
8.6. The Customer undertakes, at DG press’s first request:
8.6.1. to insure and keep insured the goods supplied subject to the retention of title against fire, explosion and water damage and theft, and to make the relevant insurance policy available for inspection;
8.6.2. to pledge to DG press all claims that the Customer has vis-à-vis insurers relating to the goods supplied subject to the retention of title in the manner prescribed by Section 3:239 of the Dutch Civil Code[Burgerlijk Wetboek];
8.6.3. to pledge to DG press all claims that the Customer may have vis‐à‐vis its Customers in the event of the resale of the goods supplied subject to the retention of title in the manner prescribed by Section 3:329 of the Dutch Civil Code;
8.6.4. to mark the goods supplied subject to the retention of title as DG press’s property; and
8.6.5. to cooperate in other ways with all reasonable measures that DG press wishes to take to protect its proprietary rights in respect of the goods which do not unreasonably hinder the Customer’s normal business operations.
Article 9. Passing of risk
9.1. From the time that the goods are available for transport at DG press or its subcontractors and the Customer has been so notified in writing, the goods will be for the Customer’s account and risk based on the stipulation of the applicable Incoterm.
9.2. Any storage costs and other costs incurred as a result of the Customer’s failure to take prompt delivery of the goods will be for the Customer’s account and risk.
Article 10. Payment
10.1. The machine must be fully paid before start up commercial production and no later 180 days after shipment of the press. 10.2 DG press can give the right to the Customer to use the goods when payment is not fully received by providing a code. In case the Customer fails to effect payment on the agreed date the code will not be provided. 10.3. DG press will be entitled to demand an advance payment. 10.4. All payments should be made without any deduction or set‐off to a bank account specified by DG press in the invoice. 10.5. In the event of any overdue instalments, the Customer will owe interest at the statutory commercial rate pursuant to Section 6:119 of the Dutch Civil Code, without any notice of default being required, effective from the due date, as well as any judicial and extra‐judicial collection costs. The extra‐judicial collection costs will amount to 15% of the principal sum. If the costs incurred by DG press exceed this percentage, it will be entitled to claim the costs actually incurred by it. 10.6. The above will apply without prejudice to DG press’s right to suspend any obligation it may have if the Customer defaults on its payment of one or more outstanding instalments. 10.7. In the event of the Customer’s non‐performance, improper performance or late performance of its payment obligations or if the Customer is declared bankrupt, is granted a suspension of payments, if attachment is levied against it, or if its business is discontinued or liquidated, DG press will be entitled to demand immediate payment of any outstanding amounts. 10.8. If, upon the Agreement’s conclusion, DG press has asked the Customer to make a down payment and it has not or insufficiently made such down payment or provided such security, DG press’s claims will be immediately due and payable and DG press will be authorised to suspend its further performance of the Agreement or to fully or partially dissolve the Agreement, without prejudice to its right to claim damages.
Article 11. Limited warranty
11.1. DG press will not issue any warranties other than those specifically described in the Agreement or these Terms and Conditions.
11.2. In these General Terms and Conditions, the term ‘goods’ will cover all goods, such as machines, systems and parts, that are supplied pursuant to the Agreement.
11.3. The Customer will be obliged to inspect the goods supplied, or have others do so, upon their delivery or transfer. In doing so, the Customer should inspect whether the quality and quantity of the goods delivered are in accordance with what was agreed. Any visible defects and deviations must be stated on the consignment note/packing list and reported by telephone and in writing within 48 hours, in default of which the goods delivered will be presumed to be sound.
11.4. Any warranty claims pertaining to non‐visible defects in the products should be submitted to DG press in writing and by telephone within eight days of their discovery, or in any case within eight days after they could reasonably have been discovered.
11.5. Warranty claims should always be lodged within the warranty period..
11.6. DG press should at all times be given the opportunity to investigate any warranty claim submitted.
11.7. If a timely complaint is submitted, the Customer will remain obliged to take delivery of and pay for the purchased goods. If the Customer wishes to return defective goods, this may only be done following written permission from DG press.
11.8. With due observance of the provisions below, DG press warrants vis‐à‐vis the Customer that the goods supplied by DG press will be sound, in that sense that any defects in those goods reported by the Customer to DG press within the contractual warranty period, which defects are proven by the Customer to have occurred within that same period as a result of flaws in the production equipment designed by DG press or as a result of DG press improper execution of the design or improper materials supplied by DG press, will be remedied by DG press free of charge either – at DG press’s discretion – by repairing same or by replacing any defective parts.
11.9. If a warranty claim proves to be well‐founded and the goods supplied are not replaced by other goods, it will be for DG press to decide whether the goods supplied are to be taken back or whether they may remain with the Customer. If a complaint proves to be well‐founded and the supplied goods are not replaced by other goods, DG press will be entitled to charge the Customer a reasonable fee for the period during which the goods were used.
11.10. Any warranty claims pertaining to defects should be lodged without delay.. If the warranty period has expired, any claims against DG press pertaining to defects will have lapsed.
11.11. DG press will not accept any liability for defects resulting from normal wear and tear or incorrect use of the goods and/or any use conflicting with DG press’s operating and maintenance directions; the same will apply to any defects resulting from modifications made or instructions issued by the Customer or from compliance with government regulations.
11.12. If, in DG press’s opinion, on‐site repairs are the most appropriate remedy, the Customer shall offer DG press the opportunity to effect such repairs and shall furthermore make any required and customary auxiliary workers, auxiliary materials and equipment (including fuel, oils, greases, polishing and other small materials, gas, water, electricity, steam, compressed air, heating, lighting, etc.) available to DG press, on time and at the right place, without charging it for same. Any costs incurred by DG press as a result of non‐fulfilment or late fulfilment of this obligation will be for the Customer’s account. Unless the Agreement provides otherwise, any travel and accommodation expenses will be for the Customer’s account.
11.13. If DG press chooses to repair the defective parts in its factory, the transport there and back will be for the Customer’s account and risk, unless the parties agree otherwise in writing.
11.14. If DG press chooses to replace the defective parts, the transport of the parts to be replaced and the parts replacing same will be at the Customer’s expense and risk. The costs of the disassembly and reassembly of obstacles needed to perform the repairs on the defective parts will always be for the Customer’s account, unless the parties have agreed otherwise in writing.
11.15. If DG press replaces any goods or parts in order to perform its warranty obligation, the goods or parts replaced will become DG press’s property and will be transported to DG press if requested
11.16. If the supply includes any computer software, the provision of Article 7 will apply. During the warranty period specified above, DG press will remedy any flaws in the software to the best of its ability, for which purpose ‘flaws’ will be defined as any reproducible deviations compared to the specifications issued by DG press in respect of the software. DG press may charge the Customer the costs of repair in the event of improper use by the Customer or other causes not attributable to DG press. The warranty above will not apply to computer viruses, unless the Customer demonstrates that the virus was already present in the software at the time that it was made available by DG press.
11.17. In the event of the Customer’s non‐performance, improper performance or late performance of any of its obligations under the Agreement concluded with DG press, DG press will not be obliged to perform any warranty whatso ever. If the Customer performs, or has others perform, any disassembly work, repairs or other work in respect of the good without DG press’s prior written approval, any claims it may have based on the warranty will lapse.
11.18. No warranty will be issued in respect of any inspections performed, recommendations issued or similar services provided by DG press.
11.19. DG press may charge the Customer investigation costs in the event of warranty claims that prove unfounded.
Article 12. Suppliers
12.1. If DG press has to accept limitations imposed by the supplier; in the latter event, the supplier’s specific terms and conditions will be appended and will apply.
Article 13. Liability
13.1. Following the supply, DG press’s liability will be limited to the warranty obligations laid down in Article 11.
13.2. Without prejudice to the other provisions of these Terms and Conditions regarding DG press’s liability, DG press will not accept any liability for trading losses and/or any other forms of indirect damage or consequential losses or damage incurred by third parties, unless and insofar as such damage or losses have resulted from gross negligence on DG press’s part.
13.3. DG press will not accept any liability for errors or omission in any sense if the relevant work is performed or the goods are supplied for no consideration.
13.4. If DG press supplies any computer equipment in the context of the Agreement, it will not be liable for any damage resulting from the loss of electronic data and information.
13.5. Under all circumstances, the liability will be limited to the part of the order amount to which the liability pertains but in any case not more than the amount of the payment made by DG press’s insurer.
Article 14. Indemnification
14.1. The Customer shall indemnify DG press against all claims instituted by any of the Customer’s employees or representatives or by third parties, including those based on damage or personal injuries directly or indirectly resulting from 1) the Customer’s or its personnel’s non‐compliance with the operating, maintenance and safety directions given by DG press, 2) the removal of or any changes to the safety facilities in or on the products or 3) any binding directions given by the Customer for certain provisions relating to technical facilities.
14.2. The Customer shall indemnify DG press against any claims instituted by third parties based on damage incurred by those third parties because of their application or use of designs, recommendations, studies or other services provided by DG press or its personnel to the Customer.
Article 15. Force majeure
15.1. DG press shall not be liable for any loss, damage, or delay in delivery due to acts of God or causes beyond its reasonable control including acts of the Customer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, sanctions issued by the authorities, war, riots, delays in transportation, transportation embargoes, or inability due to causes beyond its reasonable control to obtain necessary engineering talent, labour, materials, or manufacturing facilities. In the event of such delay, the date or dates for performance hereunder by DG press shall be extended for a period equal to the time lost by reason of the delay.
15.2. For the duration of a situation of force majeure, DG press’s supply and other obligations will be suspended. If the duration of the situation of force majeure exceeds six months, either party will be entitled to dissolve the Agreement, without any obligation to pay damages arising.
15.3. If DG press has already delivered part of the performance, either by manufacturing part or by effecting a partial delivery, it will be entitled to compensation for the reasonable costs of that performance incurred by it up to the time at which the situation of force majeure occurred.
Article 16. Applicable law and disputes
16.1. This Agreement and any ensuing Agreements will be governed exclusively by Dutch law.
16.2. All disputes arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The place of arbitration shall be Amsterdam (the Netherlands).
Article 17. Validity
17.1. These Terms and Conditions will also retain their validity after the full or partial termination or dissolution of the Agreement.
Article 18. Data Protection
18.1. To the extent that a Customer provides Personal Data to DG press in connection with Customer’s provision of goods or services to the Customer, DG press shall comply with all applicable requirements of the General Data Protection Regulation (Algemene verordening gegevensbescherming). This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the General Data Protection Regulation, or other similar laws to which a party is subject.
18.2. The parties acknowledge that for the purposes of the General Data Protection Regulation, where the Customer transfers the Personal Data of a third party to DG press for processing as part of the provision of DG press’s goods and services to the Customer, the Customer is the Data Controller and DG press is the Data Processor. Without prejudice to the generality of this clause, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to DG press for the duration of the agreement between DG press and the Customer.
