I. General information – Scope
- Our sales conditions apply exclusively, and only to transactions with other businesses. We do not accept terms and conditions of the contractual partner in conflict or deviation with our contractual terms even if we are aware of them, unless we have previously expressly agreed to them in writing. Our sales conditions also apply when we supply goods in spite of full awareness of terms and conditions of our contractual partner without reservations.
- Our sales conditions also apply to all current and future sales transactions, even if they are not expressly agreed again. Purchase confirmations with references to sales conditions therein are hereby rejected.
- All agreements between us and our contractual partner must be regulated in writing under the present contract.
II. Offer – Conclusion of contract
- Our offers are non-binding. Technical changes, insofar as they are reasonable for the contractual partner, are reserved. Unless expressly agreed otherwise, we offer no guarantees to our contractual partner. Product descriptions are exclusively for information purposes, and only cite approximate values.
- By ordering the goods, the contractual partner declares his binding intent to purchase the ordered goods. We may accept orders that qualify as offers according to § 145 BGB at our discretion within a period of four weeks.
- We are entitled to accept the contractual offer for the order either in writing or by delivery of the goods to the contractual partner.
- The conclusion of contract is subject to the timely and defect-free delivery by our suppliers. However, this only applies insofar as we have concluded a congruent hedging transaction with our supplier, and if the late or defective self-delivery are not our responsibility.
- We reserve the ownership and copyright to any illustrations, drawings, calculations and other documents; they must be made available to third parties, and used exclusively for the contractual purpose. If the industrial rights of any third party are violated in the scope of production according to the contractual partner’s templates, samples or other specifications, he shall hold us harmless against third party claims.
- The provision of samples to third companies generally takes place at a charge.
- Tools (e.g. stampers) do not become the property of our contractual partner, even if charged at full cost, unless agreed otherwise.
III. Compensation – Payment
- The price offered is binding. Statutory VAT is not included in our prices. Sales tax is added on the day of invoicing.
- Unless provided otherwise in the order confirmation, our prices to third companies are stated “ex works” excluding packaging; this is invoiced separately.
- The contractual partner is only entitled to the offsetting of counterclaims, if his counterclaims have been determined by court order, are undisputed, or have been acknowledged by us. If some of the goods delivered are discovered to be defective, our contractual partner is obliged to issue the payment for the non-defective part of the delivery, unless the partial delivery is of no further interest to him.
- The contractual partner may only exercise a right of retention, if his counterclaim results under the same contractual relationship. The rights under § 320 BGB (defence of non-performance of contract) remains unaffected.
- If our contractual partner defaults on payment, we are entitled to suspend the fulfilment of our obligations after a written reminder until the payments have been received. § 321 BGB remains unaffected.
- If the buyer is in default in respect of any payment obligations, all existing claims become due immediately.
IV. Volume variations, shrinkage
- Our contractual partner is advised that excess or short deliveries to the amount of up to 3% are production related. Such excess or short deliveries do not constitute breach of contract. The settlement takes place for the actual delivery quantity to be determined by the amount of consideration.
- For print jobs, a technical manufacturing/processing loss of up to 10% is invoiced. This does not constitute a claim for dereliction of contractual duties.
V. Delivery terms
- Delivery terms and deadlines are only binding in case of express written confirmation; otherwise, they are generally stated as approximate dates. Delivery periods commence upon conclusion of contract at the earliest, but not before all technical and commercial questions have been settled; they are subject to the fulfilment of contractual obligations by our contractual partner (e.g. timely provision of booklets, master CDs, music, print and label templates etc). The agreed delivery period is deemed as met if the contract item has left the plant, or readiness for dispatch has been advertised.
- Delivery terms are extended appropriately, including within delays, for any labour disputes, in particular strikes and lockouts, and unforeseeable obstacles beyond our control, if such obstacles demonstrably have a decisive influence on our fulfilment of contract in relation to the contractual partner. This also applies if such circumstances arise at our suppliers. At the exception of obvious cases of the above circumstances, we will notify our contractual partner as soon as possible. If the obstruction lasts for more than 3 months, the contractual partner is entitled to withdraw from the unfulfilled part of contract after setting of a reasonable grace period. A delay in delivery or the release of our contractual partner from his obligations do not entail any claims for damages.
- Delays in delivery require the setting of reasonable grace period of at least two weeks on the part of our contractual partner, unless agreed otherwise (e.g. short selling). The grace period commences upon receipt of the grace period notification bye us.
- If our contractual partner sets an appropriate grace period (as outlined above in item c) after we have entered default, he is entitled to withdraw from the contract after the fruitless expiration of this grace period, without assertion of damages for default. The contractual partner is only entitled to damages in lieu of performance are if the delay due to intent or gross negligence. Liability for damages is limited to the typically expected extent. The aforementioned limitation of liability does not apply to firm deals.
- If delivery on call has been agreed, the calls are to be executed within 6 months of order confirmation, unless agreed otherwise in writing. We are entitled to make deliveries to our contractual partner after the elapse of the above period or at differing, agreed call times, and to assert our claim. In such cases, the contractual partner is obliged to acceptance and payment. When a delivery call has been issued, we deliver within 14 working days, unless agreed otherwise.
- We are entitled to partial deliveries when serving other businesses at any time.
VI. Retention of title
- The seller reserves the title to the goods until all claims of the seller against the buyer arising under the business relationship, including future claims arising from simultaneous or subsequent contracts, have been settled. This also applies if certain or all claims of the seller have been included in an ongoing account, and the balance has been struck, and acknowledged.
- The buyer’s reselling of the retained goods in the ordinary course of business is subject to the buyer’s assignment of all claims out of such resale to customers or third parties to the seller in advance and in full. The sale of unprocessed retained goods, or after processing, or in combination with other goods that are the exclusive property of the buyer is subject to the buyer’s assignment of all claims from such resale to the seller in advance and in full. The sale of retained goods after processing/in combination with goods that are not the property of seller is subject to the buyer’s assignment of all claims arising from such resale to the value of the reserved goods and in advance, with all ancillary rights and priority before the remainder. The seller hereby accepts the assignment. In collecting this claim, the buyer is, in turn, authorised to assignment. The seller’s right to collect the claims remains unaffected; however, the seller undertakes not to collect the claims as long as the buyer meets his payment and other obligations. The seller may require the buyer to disclose the assigned claims and corresponding debtors, provide all necessary information for their collection, hand over the relevant documents, and notify the debtors of the assignment.
- Any modification or processing of the reserved goods are conducted by the buyer on behalf of the seller, without the latter incurring any obligation. Any processing, bonding, combination or mixing of the reserved goods with other retained goods that are not the property of the seller of goods entitles the seller to co-ownership of the new item, proportionate to the value of the retained goods to the other processed goods at the time of processing, bonding, combination or mixing. If the buyer acquires sole ownership of the new object, the parties agree that the buyer is to grant the seller co-ownership of the new item in proportion to the value of the processed, bonded, mixed or combined retained goods, and safekeep the item at no cost to the seller.
- If a mutual liability of the seller arises in the context of payment of the purchase price by the buyer, the retained title, as well as the underlying claim from deliveries of goods shall not expire before the bill of exchange has been redeemed by the buyer as drawee. If the value of securities exceeds the secured claims by more than 20%, the seller is required to request their release at the request of the buyer.
- The seller is entitled to demand the release of items in his property at any time, specifically the rights of disposal or assignment of the claim to return consideration under bankruptcy proceedings, if the fulfilment of his claims by the buyer is at risk, in particular if insolvency proceedings are initiated over his assets, or his financial standing deteriorates significantly. The assertion of the retention of title, as well as the seizure of goods delivered by the seller are not deemed to constitute withdrawal from the contract.
- In case of seizure or confiscation of the goods or any other act or intervention by third parties affecting the rights of the seller, the buyer must notify him without delay, and take all necessary measures to avert the threat in consultation with him. Insofar as appropriate for the protection of the goods, the buyer shall assign claims to the seller, at his request. The buyer is to reimburse the seller for all damages and costs including court and legal fees incurred in the course of defence against acts of intervention by third parties.
VII. Transfer of risk
- Unless stipulated otherwise, particularly in our order confirmation, delivery is deemed agreed as ex works.
- We will conclude transport insurance cover for the delivery at the contractual partner’s request. The resulting costs are to be borne by the contractual partner.
- The risk of accidental loss and deterioration of goods passes to the contractual partner upon the handover, or to the shipper, carrier or other natural person or entity commissioned with the dispatch for sales shipments.
- The handover is also deemed to have occurred if the contractual partner enters into acceptance default.
VIII. Rights of the contractual partner in case of defects
- We may remedy defective goods by repair or replacement at our discretion. If the remedy fails, is refused by us, or is unreasonable to our contractual partner, the contractual partner is generally entitled to exercise his legal right, such as reduction of compensation (reduction) or cancellation of contract (withdrawal), and claim for damages or compensation instead of performance at his discretion. In cases of minor breaches of contract (breach of duty), especially for minor defects, the contractual partner (if it is a business) shall not be entitled to compensation in lieu of performance; the right of withdrawal is also precluded in such cases.
- If the contractual partner elects to assert damages after failed remedy, the goods remain with the contractual partner, if this is reasonable. In this case, the claim for damages of the contractual partner is limited to the difference between the contract price and the value of the defective item. This does not apply if the infringement was fraudulently caused by us. If the contractor elects to withdraw, he is not entitled to claims for damage due to defects.
- The provisions of § 377pp HGB must be observed. In particular, obvious deficiencies have to be reported immediately after receipt of the goods, otherwise the assertion of rights by the contractual partner for defects is excluded. The contractor has the full burden of proof for all claims, in particular for the defect itself, the time of discovery of the, defect and the timeliness of reporting thereof.
- The limitation of rights for defects of the product is one year from delivery of goods.
- If delivery takes place after an initial sample inspection, complaints for defects are excluded if the defect was detected, or remained undetected due to gross negligence, except for malice.
IX. Liability, Limitation of liability
- We are not liable for slightly negligent breach of contractual obligations, unless essential contractual obligations (cardinal obligations) were injured.
- Insofar as we are liable (eg in case of slightly negligent breaches of duty) for damages, our liability is limited to the typical and foreseeable direct average damage expected for the type of goods. We are not liable for damages not incurred on the delivered goods themselves, such as for lost profit and other financial losses of our contractual partner. This also applies to breaches of duty by our legal representatives or subcontractors.
- The above limitations of liability do not affect claims of the contractual partner from statutory product liability and cases of assumption of a guarantee or a procurement risk. Furthermore, the limitations of liability do not apply for damages resulting from injury to life, limb or health, if the breach of duty underlying the damage is at our responsibility. The limitation of liability does not apply to damages based on an intentional or grossly negligent breach of duty on our part. Such breach of duty on our part is equal to that of our legal representatives or agents.
- Claims for damages due to defects expire one year after delivery of the goods. This does not apply if we stand accused of fraudulent intent. The above provision also does not apply if we are guilty of gross negligence, and in case of us attributable damages resulting from injury to life, limb or health of contractual partners.
- All claims for damages are excluded for the sale of used, movable objects to other businesses . The above provision under 2 and 3 remain reserved.
X. Final provisions
- The law of the Federal Republic of Germany applies. The provisions of CISG (CISG – Vienna Convention of 1980) do not apply.
- The exclusive place of jurisdiction for all disputes is at our registered office.
- Please note that personal information may be stored for in accordance with § 33 of the Federal Data Protection Act (Act) for order processing.
Alternative Dispute Resolution in accordance with Art. 14 (1) ODR-VO and § 36 VSBG:
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