General Terms and conditions, terms of delivery and terms of payment (T&C's)
I. Scope and Conclusion of Contract
Assignments will only be carried out on the basis of the following stipulations. Deviant regulations require written confirmation.
1. The prices stated in the Contracting Agent's offer apply on the condition that the order data upon which the offer is based, remain unchanged, however, no longer than 4 months after the offer has been received by the Contracting Principal. In the case of deliveries to third parties, the orderer is to be considered the Contracting Principal, as long as no other explicit agreement was arranged to the contrary. The Contracting Agent's prices are excluding statutory Value Added Tax. The Contracting Agent's prices apply ex works. They do not include packaging, freight, postage, insurance, or any other delivery costs.
2. Retrospective changes implemented by the Contracting Principal including any break in operation will be invoiced to the Contracting Principal. Retrospective changes are also repeated printing of sample prints, requested by the Contracting Principal due to slight deviations from the template.
3. Sketches, drafts, samples, sample prints, corrections, changes, delivered/ transferred files and similar preparatory works, implemented by the Contracting Principal, will be invoiced. The same applies to data transfers (e.g. by ISDN).
1. Payment is to be made immediately upon receipt of the invoice without deduction. Discount agreements to not apply to freight, postage, insurance or other costs of package and posting. The invoice will be raised based on the date of delivery, part delivery or upon notification of readiness for delivery (debt collected by the creditor, default on acceptance). Bill of exchange will only be accepted upon special agreement in lieu of payment without discount. Interest and expenses are carried by the Contracting Principal. They are to be paid immediately by the Contracting Principal. The agent cannot be held responsible for the prompt presentation, protest, notification and return of the bill of exchange in the event of non-remittance unless he or his vicarious agent can be held accountable.
2. In the case of extraordinary advance payment, reasonable payment can be demanded.
3. The Contracting Principal can only offset an undisputed or legally determined demand, or make use of a right to retention.
4. Should it becomes apparent after conclusion of the contract that the Contracting Principal may be unable to fulfil the payment demands due to inability to pay, the Contracting Agent cannot demand payment in advance, retain goods non-delivered and cease any further. The Contracting Agent is also entitled to these rights should the Contracting Principal be in arrears with the payment of deliveries, which are based on the same legal relationship. § 321 II BGB (German Civil Code) remains unaffected by this.
5. In the case of arrears, a debt interest of 8 % over base is to be paid. The claim for further compensation remains unaffected by this. Should the Contracting Principal not pay the price within 10 days after receipt of the invoice and delivery of the goods, including all supplementary costs in accordance with Section II ("Prices"), he will be in arrears without the need for a formal reminder.
1. Should the goods be sent, risk is transferred to the Contracting Principal as soon as the goods to be delivered have been transferred to the person conducting the transport.
2. Delivery deadlines only apply if they have been explicitly confirmed by the Contracting Agent. If the contract has been concluded in writing, confirmation of the delivery appointments is also to be made in writing.
3. Should the Contracting Agent delay the performance, the Contracting Principal can only make use of his rights according to § 323 BGB (German Civil Code) if the delay is the responsibility of the Contracting Agent. This regulation does not constitute a change in onus.
4. Interruptions in operation - both on the part of the Contracting Agent and of a supplier - e.g. strike, lock out and all other kinds of force majeure, only entitle the opposing party to termination of the contract if a longer waiting period has become unreasonable for the Contracting Principal, otherwise the delivery term is extended for the duration of the delay. Termination is, however, first possible four weeks after the aforementioned interruptions to operation have become apparent. In these cases the Contracting Agent's liability is excluded.
5. The Contracting Agent retains a right to retention on all delivered print and stamp templates, manuscripts, raw materials and other items, in accordance with § 369 HGB (German Commercial Code), until complete fulfilment of all other demands required from the business relationship.
6. The Contracting Agent will take back the packaging as part of his obligations labelled in the packaging regulations. The Contracting Principal can return packaging to the Contracting Agent's premises at the usual business hours after reasonable prior notice, unless he has been informed of a different location where he can dispose of the packaging. The packaging can also be returned to the Contracting Agent upon delivery, unless the Contracting Principal has been informed of a different location where he can dispose of the packaging. Packaging will only be returned immediately upon delivery in case of subsequent deliveries after prior notice and appropriation with reasonable notice. The costs of transport of used packaging are to be carried by the Contracting Principal. Should the stated deposit area be further away from the Contracting Agent's offices, the Contracting Principal will merely carry the costs of transport incurred for the distance to the offices of the Contracting Agent. The remaining packaging must be clean, free from alien particles and sorted according to different packaging. Otherwise the Contracting Agent is entitled to claim reimbursement from the Contracting Principal for the additional costs caused.
V. Reservation of Property Rights:
1. The delivered goods remain property of the Contracting Agent until all demands claims he has viz-á-viz the Contracting Principal up to the date of invoice have been satisfied. The Contracting Principal is only entitled to re-sale as part of ordinary business dealings. The Contracting Principal relinquishes his demands to the Contracting Agent from the re-sale of the goods. The Contracting Agent hereby accepts the relinquishment. At the latest upon arrears, the Contracting Principal is obliged to inform the debtor of the demands stated. Should the value for the securities reserved for the Contracting Agent exceed his demands by more than 20%, the Contracting Agent thus should be obliged to release the securities at the discretion of the Contracting Agent upon demand of the Contracting Principal or a third party affected by the over collaterisation.
2. In the case of treatment or adjustment by the Contracting Agent of goods delivered to him and for which he has ownership, the Contracting Agent is to be seen as the manufacturer in accordance with §950 BGB (German Civil Code) and retains ownership of the resulting goods from the commencement of adjustment until its completion. Should third parties be involved in the treatment or adjustment of the goods, the Contracting Agent is to be given part ownership limited to the invoiced amount of the goods subject to retention of title. Ownership acquired this way is to be seen as ownership subject to retention of title.
1. The Contracting Principal is obliged to inspect the pre- and intermediary goods delivered in terms of their correctness in regard to the contract and any corrections given. The risk of any mistakes is transferred upon printing/completion order to the Contracting Principal as soon as it is ascertained that the mistake did not occur or become apparent in the completion process which immediately takes place after the printing/completion order has been given. The same applies to any other release declarations given by the Contracting Principal.
2. Obvious defects are to be announced in writing within a period of one week after receiving the goods and hidden defects within a period of one week after becoming apparent. Otherwise, the assertion of guarantee claims is excluded.
3. In the case of justified complaints, the Contracting Agent is in the first instance obliged and entitled to supplementary improvement and/or replacement delivery at his discretion. In case the Contracting Agent does not comply with this obligation within a reasonable period of time or the attempt to supplementary improve the goods fails despite repeated attempts, the Contracting Principal can demand a reduction in payment or a rescission of the contract.
4. Should a part of the delivered goods be defective, this does not entitle the Contracting Principal to lodge a complaint against the entire delivery, unless he is not interested in a part delivery.
5. In the case of coloured reproductions, slight deviations from the original in any manufacturing process may not be rejected. The same applies to the comparison between any other templates (e.g. digital, proofs) and the end product. Above and beyond that, liability is excluded for defects which do not affect or only marginally affect the value or the suitability for the intended purpose .
6. The Contracting Agent is to be held liable for the value of the order for deviations in the characteristics of the materials used.
7. Deliveries (also of data carriers or transferred files) by the Contracting Principal or a third party employed by the same are not subject to any inspection duty of the Contracting Agent. This does not apply to files which are obviously not readable or not adaptable. When transferring files, the Contracting Principal is obliged to use the latest, state-of-the-art protective anti-virus software to inspect the files before sending. Data storage is the obligation of the Contracting Principal. The Contracting Agent is entitled to produce a copy.
8. Surplus or short deliveries to an amount of 10 % of the ordered amount cannot be rejected. The delivered amount will be invoiced. In the case of deliveries of paper special editions under 1,000 kg, the percentage is raised to 20 %, under 2,000 kg to 15 %.
1. Damages and reimbursement claims lodged by the Contracting Principal, regardless of the legal basis, are excluded.
2. This exclusion of liability does not apply - in cases of intentional or grossly negligent damages
- in cases of slightly negligent violation of a substantial contractual duty, also made by the legal representative or Vicarious Agent of the Contracting Agent, the same is to be held liable only for average damage depending on the type of the product, such as foreseeable damage, damage typical for the contract and direct loss,
- in cases of deliberate damage to life, limb and health of the Contracting Principal,
- in cases of fraudulently withheld defects and assumed guarantee for the characteristics of the goods,
- in the case of claims made according to the Produkthaftungsgesetz (German property liability law).
VIII. Period of Limitation
Claims lodged by the Contracting Principal on the grounds of guarantee or compensation (Sections VI and VII) become statue barred in one year, beginning with dispatch or delivery of the goods with the exception of the claims for damages labelled under Section VII. 2. This does not apply if the Contracting Agent has acted fraudulently.
IX- Trade Usage
In proper business dealings, the trade customs of the printing industry (e.g. no surrender of intermediary data such as files, lithographs or printing plates created to complete the end product) apply as long as no deviant order has been given.
The products due to the Contracting Principal, especially files and data carriers, will only be archived by the Contracting Agent beyond the time of transfer of the end product to the Contracting Principal or his Vicarious Agent upon special payment and explicit agreement. Should the aforementioned objects require insurance, the requisite policy is to be taken out by the Contracting Principal himself.
Contracts regarding regularly repeated work can be terminated within a period of 3 months notice to the end of the month.
XI. Periodical Work
The Contracting Principal alone can be held liable, if, when carrying out the assignment, any third party rights, especially copyrights, are violated. The Contracting Principal is obliged to release the Contracting Agent from any third party entitlements resulting from such a violation.
XII. Commercial Proprietary Rights/Copyright
1. Place of performance and jurisdiction for all disputes resulting from this contractual relationship, including those regarding check, bills and deeds, is the location of the Contracting Agent's registered offices, if the Contracting Principal is a tradesman, legal entity in public law or a special fund under public law and if no general jurisdiction is provided for inland. The contractual relationship is subject to German law. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
2. If one or more of the above stipulations are inadmissible, the admissibility of the remaining stipulations remains unaffected.
XIII. Erfüllungsort, Gerichtsstand, Wirksamkeit
1. Erfüllungsort und Gerichtsstand sind, wenn der Auftraggeber Kaufmann, juristische Person des öffentlichen Rechts oder öffentlich-rechtliches Sondervermögen ist oder im Inland keinen allgemeinen Gerichtsstand hat, für alle sich aus dem Vertragsverhältnis ergebenden Streitigkeiten einschließlich Scheck-, Wechsel- und Urkundenprozesse, der Sitz des Auftragnehmers. Auf das Vertragsverhältnis findet deutsches Recht Anwendung. UN-Kaufrecht ist ausgeschlossen. 2. Durch etwaige Unwirksamkeit einer oder mehrerer Bestimmungen wird die Wirksamkeit der übrigen Bestimmungen nicht berührt.
As per: 8/2002