I. SCOPE OF APPLICATION, CONCLUSION OF CONTRACT
Orders are performed exclusively on the basis of the following terms and conditions. Any divergent provisions shall require written form to be effective. Other terms and conditions will not form part of a contract, even if we do not expressly reject them.
Prices stated in the offer submitted by the contractor shall be effective subject to the condition that the order data on which the submitted order is based remain unchanged; however, such prices shall cease to be effective after a period of four months following receipt of the offer by the customer at the latest. With orders for delivery to third parties, the ordering party shall be deemed to be the customer insofar as no other express agreement has been made. The contractor’s prices shall be net of value added tax. The contractor’s prices apply ex factory. Prices do not include packaging, freight, postage, insurance and other shipping costs. Subsequent changes at the instigation of the customer, including machine downtimes that are occasioned by the customer as a result, shall be invoiced to the customer. The term subsequent amendments shall also include repetitions of sample proof copies which are demanded by the customer due to minor deviations from the model copy. Sketches, drafts, specimen type matter, specimen prints, samples, proof sheets or similar preparatory work that is occasioned by the customer shall be invoiced.
Payment shall be due for settlement immediately upon receipt of the invoice at no discount. Any agreement regarding a prompt payment discount shall not apply to freight, postage, insurance or other shipping costs. The invoice shall be issued as per the date of delivery, partial delivery or readiness for delivery (amount owed to be collected at debtor’s address, default of acceptance). Bills of exchange shall only be accepted upon special agreement and pending full discharge of the debt without grant of any prompt payment discount. Discount fees and other expenses shall be borne by the customer. They shall be paid by the customer immediately. The customer shall not be liable for the timely presentation, protesting, notification and return of a dishonoured bill of exchange provided that the customer or its agents in performance do not act with wilful intent or gross negligence. Appropriate advance payment may be requested in the event that unusual advance performance is made. The customer may only set off payment against counterclaims which are undisputed or legally determined. A customer who is a registered trader as defined in the German Commercial Code (HGB) shall not be entitled to exercise rights of retention. The rights set down in section 320 of the German Civil Code (BGB) shall, however, remain effective for as long as and to the extent that the contractor fails to meet its obligations under VI.3. If due payment is jeopardised owing to the deterioration in the customer’s financial position after the contract has been concluded, or after awareness is obtained of such deterioration, the contractor may demand payment in advance, may retain any goods which have not yet been delivered and may discontinue work on the order. The contractor shall also be entitled to exercise these rights if the customer defaults on timely payment for deliveries under the same legal relationship. Interest on arrears at the statutory rate (section 288 BGB) shall be payable upon default in payment. This shall not exclude the assertion of more extensive claims.
If the contractor has committed itself to making delivery, such delivery shall be made on behalf of the customer with the required duty of care; the liability of the contractor, however, shall be limited to wilful intent and gross negligence. The risk shall pass to the customer as soon as the shipment has been transferred to the persons responsible for transport. Delivery dates are only valid if they are expressly confirmed by the contractor. If the contract is concluded in writing, confirmation concerning the delivery date must also be in writing. If the contractor is in default, then it shall first be granted a reasonable subsequent time period for performance. In the event of a failure to meet this renewed deadline the customer shall have the right to rescind the contract. Stoppages – both in the contractor’s operations and in those of one of its suppliers – including but not limited to strikes, lockouts and all other instances of force majeure, shall not constitute grounds for terminating the contractual relationship. The principles regarding frustration of contract remain unaffected. The contractor shall be entitled to exercise a right of retention to printing copy, stamp templates, manuscripts, raw materials and other items delivered by it under section 369 of the German Commercial Code (HGB) until all claims arising from the business relationship have been settled. The contractor shall take back packaging within the framework of the obligations incumbent upon it on the basis of the Packaging Ordinance (Verpackungsordnung). The customer shall be entitled to return packaging in the business operation of the contractor during normal business hours after timely prior notification, unless it is notified of another acceptance/collection site. Packaging may also be returned to the contractor upon delivery, unless the customer has been informed about an alternative acceptance/collection site. Packaging shall only be taken back directly after delivery of the goods, with subsequent deliveries only after timely prior notification and readiness. The costs of transporting used packaging shall be borne by the customer. If the acceptance/collection site designated is more distant than the contractor’s place of business, the customer shall only bear the transport costs for removal to the contractor’s place of business. Packaging which is returned must be clean, free of adulterating substances and sorted out in accordance with different packaging. Otherwise, the contractor shall be entitled to demand from the customer the additional costs arising from the waste disposal. Products, to which the customer is entitled, including but not limited to data and data carriers, shall only be archived by the contractor after the time at which the final product is transferred to the customer and its agents in performance if this has been explicitly agreed and if separate payment has been made. If such items require insurance cover, unless otherwise agreed, such cover shall be obtained by the customer.
V. RETENTION OF TITLE
The supplied goods shall remain the property of the contractor pending full settlement of all accounts receivable to the contractor from the customer on the invoice date. The customer shall only be entitled to resell such goods in the ordinary course of its business. The customer hereby assigns its claims for payment for the resale of such goods to the contractor. The contractor hereby excepts such assignment. In the case of default at the latest, the customer shall be required to name the debtor of the assigned claim: If the value of the collateral provided for the contractor exceeds the contractor’s receivables by more than 20%, the contractor shall, at the request of the customer or of a third party which is disadvantaged by the excessive collateral provided to the contractor, release such collateral at its own discretion. The contractor shall have the status of manufacturer under section 950 of the German Civil Code (BGB) in the event that goods are processed or worked by the contractor or goods which are the property of the contractor are processed or worked; the contractor shall retain title to the products at all stages of such working or processing. If third parties are involved in working or processing products, the contractor’s co-ownership of the retained goods shall be limited to the value of the contractor’s invoice. Title acquired in this manner shall be deemed to be reserved property.
VI. COMPLAINTS, WARRANTIES
The customer shall in all cases inspect the supplied goods and the pre- and intermediate products transmitted for correction to ensure that they comply with contractual requirements. The risk of any defects shall be transferred to the customer with the declaration of readiness for printing/declaration of readiness for production, provided that such defects did not first occur or were detected in the production process following the declaration of readiness for printing/declaration of readiness for production. The same shall apply for all other declarations of release issued by the customer. Complaints shall only be permissible if submitted within one week of receipt of the goods. Hidden defects which cannot be found upon immediate inspection must be notified within the statutory warranty period. In case of legitimate complaints the contractor shall, at its own discretion and to the exclusion of other claims, be required to provide subsequent improvement and/or substitute delivery up to the value of the order except in the case of a lack of warranted characteristics or where the contractor’s agents in performance act with wilful intent or gross negligence. The same applies in case of a legitimate objection to subsequent improvements or substitute delivery. In the case of delayed, omitted or unsuccessful subsequent improvements or substitute delivery the customer shall be entitled to claim a reduction in the remuneration, or rescission of the contract (conversion). A defect concerning a part of the delivered good shall not justify an objection to the entire delivery, unless the customer has no interest in partial delivery. In the case of colour reproductions in all production procedures, objections to minor deviations from the original shall not be sustained. This shall also apply to comparisons between proof prints and print runs. The contractor shall only be liable for deviations in the quality of the materials used up to the amount of the contractor’s own claims against its suppliers. In this case, the contractor shall be released from its liability, if it surrenders its claims against its supplier to the customer. The contractor shall be liable if, due to the fault of the contractor, claims against the supplier do not exist or are not enforceable. The contractor shall not be required to inspect supplies (including but not limited to data carriers) provided by the customer or by a third party commissioned by the customer. Objections may not be raised against excess or shortfall deliveries of up to 10% of the ordered print run. The amount delivered shall be invoiced. The percentage shall increase to 20% for deliveries comprising special paper productions of less than 1,000 kg and to 15% for deliveries of less than 2,000 kg.
The contractor’s liability shall be limited to damage arising as a result of wilful intent or gross negligence. In all other respects the contractor’s liability for negligence shall be subject to the following provisions: Claims for damages owing to consequential damages, positive breach of contract, culpa in contrahendo and tort are excluded. If the order involves finishing work or further processing of printed products, the contractor shall not be liable for the resulting damage caused to the product which is to be refined or processed. Claims for damages due to impossibility and delay shall be limited to the value of the order (own work excluding preliminary work and materials). The above limits on liability shall apply to the same extent for the contractor’s agents in performance and vicarious agents. In commercial transactions the contractor shall only ever be liable for damage arising owing to wilful intent or gross negligence. The above limits on liability shall not apply to culpable breach of material contractual obligations if the purpose of the contract is in jeopardy, warranted characteristics are lacking and in cases in which mandatory liability is held under the German Product Liability Act (Produkthaftungsgesetz).
VIII. PERIODIC WORK
Contracts relating to regular and recurrent work may be terminated at the end of a month by serving notice of at least 3 months.
The customer shall bear sole liability if performance of its order results in the violation of rights, in particular copyrights held by third parties. The customer shall release the contractor from all claims by third parties arising from such a violation.
The contractor shall be authorised to advertise its company name in an appropriate fashion on the contractual goods if the permission of the customer is given. The customer shall only be entitled to withhold such permission if the customer has an overriding interest in doing so.
XI. PLACE OF PERFORMANCE, LEGAL VENUE, EFFECTIVENESS
The place of performance and legal venue, if the customer is a registered trader within the meaning of the German Commercial Code (HGB) or has no domestic general jurisdiction, for all disputes arising from the contractual relationship, including checks, bills of exchange and trials restricted to documentary proceedings, shall be the registered office of the contractor. The contractual relationship is subject to German law. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Should one or several of the provisions of these General Terms and Conditions be ineffective, this shall not affect the validity of the remaining provisions.