- Conclusion of Contract
- Delivery Dates
- Dispatch and Transfer of Risk
- Prices, Payment
- Retention of Title, Delay of Payment
- Liability for General Breach of Contract and Tortious Acts
- Order Execution
- Industrial Property Rights and Rights of Third Parties
- Final Provisions, Place of Performance, Venue
1. Conclusion of Contract
Our General Germs and Conditions of sale shall apply exclusively; we will not accept any conditions of the Purchaser / Customer which are contradictory to or deviant from our General Terms and Conditions, unless we explicitly accept them in writing. Our Terms and Conditions shall also apply when we deliver unreservedly to the Purchaser / Customer being aware of the Purchaser’s / Customer’s Terms and Conditions which are contradictory to or deviant from our General Terms and Conditions. Our offers are not binding and subject to confirmation. All the agreements reached by us and the Purchaser / Customer are put down in writing in this contract. Written orders of the Purchaser / Customer shall be deemed accepted unless we send a different written confirmation within the period of 8 days counted upon order receipt. Should the Purchaser / Customer not contradict such a confirmation within 8 days counted upon the date of its dispatch, our new offer shall be deemed accepted. We will advise the Customer of this in our new offer. Declarations executed and provably dispatched by us shall be deemed delivered 3 days after their dispatch.
2. Delivery Dates
Our delivery dates are binding if they were agreed upon in writing and all the necessary documentation was submitted to us in time as agreed. Binding delivery dates shall be deemed observed once the goods have been taken to dispatch on the delivery date at the latest. In case of contract modifications which could influence the delivery time, the delivery time shall be extended reasonably. In case of force majeure or other unforeseen obstacles (e. g. such as import or export embargo, operational breakdowns without our responsibility, strike and lockout) the delivery period shall be extended accordingly. We shall not be responsible for the aforementioned events even if they occur during already existing delay. Should the aforementioned events cause an extension of delivery time of 3 months, both Parties shall be entitled to withdraw from the contract.
3. Dispatch and Transfer of Risk
Unless otherwise agreed, delivery shall be effected ex stock and in our discretion by instalments. Delivery shall be effected after the receipt of prepayment and at the Purchaser’s / Customer’s risk. Risk shall be transferred to the Purchaser / Customer as soon as the goods leave our premises or the premises of our contractor. If dispatch is delayed for reasons for which the Purchaser / Customer is responsible or which lie within his control, the risk shall be transferred to the Purchaser / Customer upon the day of readiness for dispatch. Furthermore, we shall be entitled to charge the goods and further expenses to the Purchaser’s / Customer’s account if the goods ordered are not collected within the agreed period of acceptance.
4. Prices, Payments
All prices are in euros including value added tax at the then applicable rate and excluding shipping costs. If the value added tax rises in the time between the conclusion of contract and delivery, the increased value added tax shall apply. We reserve our right to raise the prices accordingly if the delivery shall be effected more than 4 months after the conclusion of contract and if cost increase or decrease occur (rise in the prices of raw materials, wage increase, etc.) which could not be taken into account in the initial price calculation. Price increase shall remain within reasonable limits in accordance with the changed circumstances. Upon request we will prove these to the Purchaser / Customer. All prices exclude possible expenses for the disposal of returned packaging. Our invoices are payable within 14 days after billing date without deduction. In case of first and individual print orders we shall be entitled to demand 100% prepayment. Draft or cheque will only be accepted on account of performance. We are not liable for punctual presentation, protest, etc. Deliveries abroad shall only be possible upon irrevocable, confirmed letter of credit. Payments effected by the Purchaser / Customer shall be credited first of all against the debt which offers us the smallest security, in case of several equal securities against the oldest debt. If the Purchaser / Customer is to pay interests or other charges in addition to the purchase price, statutory provisions apply with regard to debiting. If the Purchaser / Customer fails to pay the invoice after two reminders, all the other outstanding accounts shall be due to prompt payment regardless of the agreed terms. Payments shall be collected only by persons entitled in writing to do so. The exercise of the right of retention or the set-off against counterclaims shall only be permitted in case of counterclaims or right of retention recognised by us or by declaratory judgement. If the Purchaser / Customer is in over a month’s arrears with due payment or should we receive any information after the conclusion of contract about the doubtfulness of the Purchaser’s / Customer’s credit status, in particular information about the stoppage of payments or the beginning of insolvency proceedings, we shall be entitled to invoice immediately any accumulated claims irrespective of the time of any accepted drafts or to fully or partially withdraw from the contract without the Purchaser / Customer being entitled to claim for damages in this regard. Should we not withdraw from the contract in such a case, we shall be released from our contractual obligations till the Purchaser / Customer settles all the outstanding debts upon prepayment or grants us a bail in the amount of his debt. Instead of withdrawing from the contract we shall also be entitled to take back the goods already delivered till the Purchaser / Customer settles the debts or grants us a bail.
5. Retention of Title, Delay of Payment
The goods shall remain our property until complete payment of the purchase price including all the collateral charges by the Purchaser / Customer. Payment obligation shall only be deemed fulfilled if we have the amount unconditionally and without any recourse risks at our disposal. The Purchaser / Customer may not pledge the goods to third parties or use them as security until complete payment. The Purchaser / Customer shall be entitled to resell the goods under the retention of title to his customer in the ordinary course of their business. As a precaution the Purchaser / Customer shall assign to us claims incurred from a resale or a reprocessing by third parties in the original amount of the invoice without special agreement in particular cases. The assignment also includes any claims for damages or indemnification payments. The Purchaser / Customer shall be entitled to collect the claim assigned and to resell the items only as long as he meets his contractual obligations. If the value of the claims assigned or other securities exceeds our claims more than 25%, we will assign back claims of our choice in the amount of excess if requested by the Purchaser / Customer. The Purchaser’s / Customer’s entitlement to resell or reprocess the goods expires with delay, stoppage of payments, bankruptcy petition or the beginning of bankruptcy proceedings or of similar judicial or extrajudicial proceedings regarding the Purchaser’s / Customer’s capital. In these cases we shall be entitled to collect the claims incurred from a resale or a reprocessing of the goods directly from the buyer of the Purchaser / Customer without limiting the rights stated in Point 4. The latter shall be obliged to provide us with all the necessary information in this regard.
The Purchaser / Customer shall examine upon receipt whether a delivery is complete and whether there are any externally visible defects and, should there be any defects, to give us notice of this in writing within one week after the receipt of delivery. Hidden defects are to be given notice of in writing immediately, at the latest, however, 4 weeks after the receipt of delivery. Other duties to examine and notify of defect shall remain unaffected. Decisive for a timely notice of defect is the time of its receipt by us. In case of non-observance of the duty to notify of defect, the delivery is deemed orderly and complete. Partial notices of defect shall not entitle the Purchaser / Customer to notify the whole delivery as defective. We shall be entitled to inspect, examine and test the defective delivery. Usual or minor deviations for technical reasons in weight, thickness and colour as well as in size and number of delivered items shall not be reason for notice of defect. The same applies to minor deviations from the sample, which was given to the Purchaser / Customer, in size and print version depending on print method. We shall not be held responsible for overlooked misprints which do not considerably influence the whole product. The present state of print technology excludes unlimited responsibility for light fastness, rub and water resistance and similar properties, so that we shall not be held responsible in this regard either. In case of individual print or impression orders, especially for advertising purposes, over- or under-deliveries of 5% shall be admissible. With mass articles of all kinds, up to 3% rejects due to print and further processing are usual and shall not be reason for notice of defect. Certain properties cannot be assured, no guarantees shall be given, unless expressly and separately agreed. Should the producer of raw materials guarantee certain properties to the Seller / Contractor, the latter shall assign his hence resulting guarantee claims to the Purchaser / Customer. Should the delivery display a defect, we shall replace it at our discretion or remove the defect. Should we decide to replace the delivery or remove the defect, the Purchaser / Customer, at his discretion, shall be entitled to cancel the contract or reduce the purchase price if the improvement or replacement is unsuccessful. If the Purchaser / Customer claims for damages in cases of intent or gross negligence, we are to be held responsible in accordance with statutory provisions. If we are not accused of intentional breach of contract, our liability shall be limited to the foreseeable damage which is intrinsic to the contract. Furthermore, we shall be held responsible in accordance with statutory provisions in case of breach of a condition which goes to the root of the contract; in this case our liability shall be limited to the foreseeable damage which is intrinsic to the contract. If we expressly and separately provided a legal warranty, we shall be held responsible for damage occurred not on the delivery item itself only as far as the purpose of warranty is to protect the Purchaser / Customer from such a damage. Liability for culpable injuries to life, body and health remains unaffected; this also applies to liability in accordance with the German Product Liability Act. Unless otherwise provided herein, liability is excluded.
Warranty period for defective deliveries is 12 months for tradesmen and 24 months for consumers, counted from the transfer of risk. If a defect is detected later than 6 months after the transfer of risk, the Purchaser / Customer shall prove that the delivery was defective at the moment of the transfer of risk.
7. Liability for General Breach of Contract and Tortious Acts
The Purchaser / Customer shall have no further claims for damages. This applies particularly to claims for damages based on liability arising from culpa in contrahendo, other breach of contract or tortious claims for damages to property in accordance with Sec. 823 of German Civil Code, unless there is intent or gross negligence on our side or the damage is based on breach of contract or claims in accordance with Secs. 1, 4 of the German Product Liability Act.
8. Order execution
Working materials such as reprofilms, plates, reproductions, models or samples and equipment, with which the Purchaser / Customer provides the Seller / Contractor for order execution, shall be stored by the Seller / Contractor like his own working materials and returned on demand (shipping costs shall be charged to the Purchaser / Customer). Working materials which were produced by the Seller / Contractor shall remain property of the Seller / Contractor even after being paid by the Purchaser / Customer. Galley proofs shall only be provided if expressly desired or considered necessary by the Purchaser / Customer. Approval of a galley proof absolves the Seller / Contractor from any responsibility for the correctness of the print. Delays arising from late return of galley proofs shall be charged to the Purchaser / Customer. The Seller / Contractor supplies data / films ready for press. The Seller / Contractor shall be under a duty to inform the Purchaser / Customer of any deviations of the data / films from the proof on the basis of a proof print. The Purchaser / Customer shall be entitled to make improvements to the data / films himself or to have them made by the Seller / Contractor.
9. Industrial Property Rights and Rights of Third Parties
We are holders of copyright on all the drafts and samples produced by us or on our behalf. These shall remain our property even after we supplied them to the Purchaser / Customer and shall neither be made available to third parties nor copied nor imitated unless expressly allowed by us in writing. The Purchaser / Customer shall be liable for the infringement of rights of third parties as a result of order execution according to his binding specifications and indemnify us from any claims of third parties in this regard. This applies particularly to all kinds of rights on images, fonts, music, etc.
10. Final Provisions, Place of Performance, Venue
This contract including all additional agreements shall be governed by the laws of Federal Republic of Germany, in particular by the provisions of the German Civil Code and the German Commercial Code, excluding provisions of the Uniform Law on the International Sale of Goods (ULIS) and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Sole venue shall be Munich, Germany. However, we shall also be entitled to bring an action at the Purchaser’s / Customer’s place of business.
Place of performance of all contractual obligations for both parties shall be Munich, Germany.
Should one or several provisions of the present General Terms and Conditions become invalid, in whole or in part, the validity of the remaining provisions shall remain unaffected.