General Terms and Conditions (GTCs)
Last updated: 01.09.2022
Scope
1. The following General Terms and Conditions apply to all contracts with entrepreneurs (Section 14 German Civil Code [BGB]), legal entities under public law or special funds under public law, unless expressly agreed otherwise in writing.
2. Deviating, conflicting or supplementary general terms and conditions of the Customer shall not become part of the contract, even if these are known, unless their validity is expressly consented to in writing.
3. The Customer waives its own general terms and conditions unless it expressly objects in writing and requests to enter into individual agreements.
II. Contract conclusion
1. Our offers are subject to change and non-binding. Orders are accepted by us by way of order confirmation or by order execution.
2. In the event that our employees enter into additional oral agreements or give assurances that go beyond the scope of the written contract, these are always subject to written confirmation. This does not apply to oral statements made by the management or such persons who are authorised by us without limitation.
3. For orders which are delivered to third parties, the ordering party shall be considered to be the Customer, unless expressly agreed otherwise.
III. Prices
1. Our prices are ex works and include neither packaging, freight, postage, insurance and other shipping costs, nor value added tax.
2. Our prices apply subject to the proviso that the order data on which the offer was based remain unchanged; however, they apply for no longer than four weeks after receipt of our offer by the Customer. If the order is to be placed four weeks after contract conclusion or later, the contracting parties undertake to renegotiate the price in the event of changes in costs, wages etc.
3. Subsequent changes at the Customer's request, including any resulting machine downtime, shall be charged to the Customer. Such subsequent changes shall also include the repeat creation of print proofs as requested by the Customer due to minor deviations from the master.
4. Preliminary activities such as sketches, designs / typesetting, print proofs, samples as well as galley proofs, changes to supplied/transferred data and similar preliminary activities initiated by the Customer shall be charged in any case, regardless of whether or not an order is placed.
5. The prices for advertising facilities, products or goods that are offered including installation do not include the following services: on-site power supply, scaffolding or lifting equipment, any services provided by other trades such as bricklaying, plastering or sealing work, the costs of façade work as well as the costs for proof of stability and disposal.
IV. Payment
1. Payment shall be made within 21 days of receipt of the invoice without any deduction. Any discount agreements shall not cover freight, postage, insurance or other shipping costs. The invoice date shall be the date of delivery, partial delivery or readiness for delivery (collectable debt, delayed acceptance). We do not accept cheques or bills of exchange.
2. If the Customer is in arrears with a payment for more than 21 days, all unpaid invoices shall become due for payment immediately. We can then offset incoming payments against the claim determined by us, irrespective of a payment purpose designated by the Customer. Should the above event occur, advance payment may be requested for possible further orders.
3. In the case of new customers and special customers, we reserve the right to only deliver against advance payment or cash on delivery.
4. The Customer may only offset claims or exercise a right of retention if the claims are undisputed or legally established. Counterclaims based on the same contractual relationship are excluded from the above provision.
5. If a deterioration in the financial circumstances of the Customer occurs or becomes known after conclusion of the contract and this constitutes a risk for the satisfaction of our claim for payment, we may demand advance payment and immediate payment of all unpaid invoices, including those that are not yet due, withhold goods that have not yet been delivered and stop further work on orders that are still in progress. We shall also be entitled to these rights if the Customer does not make any payment despite receiving a reminder due to default. Section 321 (2) BGB shall remain unaffected of this.
6. In the event of default in payment, interest on arrears shall be payable at a rate of 8% above the applicable base rate of the European Central Bank. This does not exclude the assertion of further damage caused by default. If the Customer does not pay the price including the ancillary costs as set out above in section III.1. within 21 days after the invoice date or value date and delivery of the goods, the Customer shall be in default even without a reminder.
V. Quality
1. It is expressly agreed that we are entitled to make deviations to the contractually agreed goods in colour, dimensions and design, insofar as these deviations do not prevent the contractually agreed technical purpose of the goods. We reserve the right to deviations in colour and different degrees of surface gloss due to the nature of the raw material, as well as material-related tolerances in thickness, format and cuts. Such deviations in colours and dimensions as well as design shall not be deemed defects in the legal sense.
2. The contractual goods are deemed to be free of defects insofar as they have the agreed quality and / or are suitable for the agreed purpose.
VI. Delivery, transfer of risk, delivery dates, acceptance, delayed acceptance, right of retention
1. All deliveries shall be made ex works, which is also the place of performance for the delivery and for any subsequent performance.
2. At the Customer’s request and expense, the goods shall be shipped to another destination. Unless otherwise agreed, we shall be entitled to determine the type of shipment, i.e. in particular the transport company, shipping route and packaging, ourselves. Shipping shall be carried out on behalf of the Customer with due care, however we shall only be liable for intent and gross negligence.
3. The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon handover. In case the goods are shipped, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass already upon provision of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. Handover shall be deemed to have taken place if the Customer delays acceptance.
4. Delivery dates are only applicable if they are expressly confirmed by us. If the contract is concluded in writing, the delivery date must also be confirmed in writing.
5. Partial services and partial deliveries are permissible to a reasonable extent.
6. If we are in default with the performance of our services, we shall first be granted a reasonable grace period. After fruitless expiry of the grace period, the Customer may withdraw from the contract. Compensation for damages caused by delay can only be demanded up to the amount of the order value (in-house contribution excluding preliminary work and material). The Customer may only exercise the rights based on Section 323 BGB if we are responsible for the delay. This regulation does constitute a change in the burden of proof.
7. If the Customer delays acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Customer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
8. We shall have a right of retention in accordance with Section 369 of the German Commercial Code (HGB) in respect of drawings, materials, samples, colour swatches, raw materials and other items supplied by us until all claims due under the business relationship have been met in full.
VII. Self-supply reservation and force majeure
1. We shall inform the Customer in good time in writing or in text form if, for reasons for which we are not responsible and despite proper and sufficient stocking according to the quantity and quality based on our supply agreement concluded with the Customer on the performance of our contractually owed deliveries, we do not receive deliveries from our suppliers or receive deliveries that are insufficient in quality or quantity or are not delivered on time.
2. The same applies if events of force majeure of not insignificant duration occur.
3. Force majeure events are, for example, extraordinary natural events such as severe storms, lightning strikes, severe droughts, pandemics, epidemics or similar, sovereign measures based on general (domestic or foreign) political considerations such as embargoes, import and export bans, acts of war or similar or interventions by third parties such as acts of sabotage, terrorist attacks or similar as well as other unavoidable and unforeseeable events which cannot be prevented despite compliance with our duty to exercise due care such as riots, industrial disputes at third parties which indirectly affect the performance of our services (e.g. air traffic controller strikes), power failures, etc.
4. Insofar as we have fulfilled our aforementioned duty to inform and have not assumed the procurement risk, we shall be entitled in the cases set out in subsections 1 and 2 to postpone delivery for the duration of the disruption and for the duration required to restart operations after the end of the disruption or to withdraw from the contract in whole or in part with regard to the not yet fulfilled part of the contract or, in the case of continuous obligations, to terminate the contract.
5. If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events as set out in the above subsections 1 or 2, the Customer shall be entitled to withdraw from the contract with regard to the not yet fulfilled part after the fruitless expiry of a reasonable grace period. At the earliest, withdrawal shall be possible four weeks after the occurrence of the events in accordance with the aforementioned subsections 1 or 2. Liability on our part is excluded in these cases.
6. Insofar as we have complied with our duty to provide information in accordance with subsections 1 or 2, further claims by the Customer, in particular claims for damages, are excluded in this case.
7. The above provisions shall apply accordingly even without the contractual agreement of a fixed delivery date or a fixed delivery period if we are unable to fulfil our delivery obligation vis-á-vis the Customer or are unable to fulfil it properly for the reasons set out in subsections 1 and 2 if it is objectively unreasonable for the Customer to continue to adhere to the contract.
VIII.Return of packaging
1. We are registered for the Dual System EKO-PUNKT GmbHThis registration applies to paper/cardboard/cardboard packaging as well as plastics for the packaging relevant for our operations within the meaning of the law. For this purpose, we are also registered with LUCID under DE317755562985.
2. We generally have no direct contact with private households. The registration only covers any individual cases of direct deliveries to private households on behalf of customers as a chain transaction with effect for us.
IX. Retention of title
1. We shall retain title to the goods until all our claims against the Customer as per the invoice date have been paid in full.
2. The Customer is only entitled to resell the goods in the ordinary course of business. The Customer hereby assigns its claims resulting from the resale to us. We hereby accept the assignment. The Customer shall remain authorised to collect the claim even after its assignment. We undertake not to collect the claim as long as the Customer meets its payment obligations towards us, is not in default of payment, no petition for the opening of insolvency proceedings has been filed and there is no other deficiency in the Customer's ability to meet its financial obligations. In such event, however, we may request the Customer to notify us about the assigned claims and the relevant debtors, including addresses, to provide all information required for collection, submit the corresponding documents and communicate the assignment to the debtors.
3. If the value of the securities existing for us exceeds our claim by more than 20% in total, we are obligated to release securities of our choice upon request by the Customer or a third party, who is adversely affected by the overcollateralisation on the part of the Customer.
4. In the event of a seizure of the goods subject to retention of title by third parties or other interventions by third parties, the Customer must refer to our ownership and must notify us immediately in writing.
5. In the event of the processing or other use of goods delivered by us and owned by us, we shall be considered as the manufacturer as defined by Section 950 BGB and shall retain ownership of the products at all times during processing. If third parties are involved in the processing or use, we shall be limited to a co-ownership share in the amount of the invoice value of the goods subject to retention of title. The thus acquired ownership shall be deemed to be property subject to retention of title. The same shall apply in the event of mixing and combining.
X. Copyrights
1. We reserve the copyrights to all documents and items provided to the Customer in connection with the order placement, such as offers, drawings, drafts, plans, sketches, calculations (in each case also in digital/electronic form, in particular as EDP files), etc. These documents may not be made accessible to third parties unless we give the Customer our express written consent to do so.
2. In the event that offers are not accepted, the interested party shall immediately and completely return all documents provided to them by us, e.g. sketches, drafts, etc. in any form, e.g. also digital/electronic (including copies made, duplications, modifications or similar) at their own risk and expense.
3. In the event of a culpable infringement of section IX. 1. or 2. a contractual penalty of EUR 5,000.00 shall be incurred for each infringement. We expressly reserve the right to assert any further damages, e.g. due to copyright infringement.
XI. Audit obligation of the Customer, warranties
1. In all cases, the Customer shall be obligated to immediately check the contractual conformity of the goods as well as the preliminary and intermediate products provided for correction and immediately report any defects in writing. The risk of possible defects shall pass to the Customer with the declaration of readiness for printing / production readiness, insofar as these are not defects which only arose or could only be detected at a later point. Hidden defects must be reported to us in writing within a period of one week from discovery. The same applies to all other declarations of release by the Customer. Otherwise, the assertion of the warranty claim is excluded. Further obligations according to Section 377 HGB shall remain unaffected of this.
2. The Customer shall give us the time and opportunity necessary for the subsequent performance owed, i.e. it shall in particular provide the rejected goods for the purpose of inspection.
3. In the event of justified complaints, we shall be obligated, at our discretion and to the exclusion of other claims, to rectify the defect and/or make a replacement delivery, up to the amount of the order value, unless a warranted characteristic is missing or we or our vicarious agent are guilty of intent or gross negligence. The same shall apply in the event of a justified complaint about the rectification or replacement delivery. If we fail to comply with this obligation within a reasonable period of time or if the rectification of defects fails despite repeated attempts, the Customer may demand a lower remuneration (reduction) or rescission of the contract (withdrawal). Liability for consequential harm caused by a defect is excluded unless we or our vicarious agent are guilty of intent or gross negligence.
4. Defects affecting only part of the delivered goods do not entitle the customer to reject the entire delivery, unless the partial delivery is of no interest to the Customer.
5. Where colour reproductions are involved in all production processes, minor deviations from the original cannot be objected to. The same applies to the comparison between other masters (e.g. digital proofs, press proofs) and the final product. Furthermore, liability for defects that do not or only insignificantly affect the value or usability is excluded.
6. We shall only be liable for deviations in the quality of the material used to the extent of our own claims against the respective supplier. In such a case, we shall be released from our liability if we assign our claims against the supplier to the Customer. We shall be liable as a guarantor insofar as claims against the supplier do not exist through our fault or if such claims are not enforceable.
7. Material - including data carriers, transmitted data - provided by the Customer or by a third party assigned by the Customer shall not be subject to any obligation on our part to carry out checks. This does not apply to data that is obviously unprocessable or unreadable. When transmitting data, the Customer shall use state-of-the-art computer virus protection programs prior to transmission. The Customer shall be solely responsible for data backups. We are entitled to make copies.
8. Customary colour deviations and material tolerances do not constitute a defect.
9. Insofar as a new order or new production of goods is required for the rectification of defects/replacement delivery, this delivery period or the necessary production periods shall be fully taken into account when calculating the reasonable period for the rectification of defects/replacement delivery. Upon request, we shall communicate the anticipated delivery periods to the Customer without delay.
XII. Disclaimer
1. Claims for damages and reimbursement of expenses by the Customer are excluded, irrespective of the legal grounds. In particular, a warranty claim is excluded if the Customer has failed to preserve rights of recourse against third parties. In addition, the Customer shall forfeit its warranty claims if it circumvents the indemnification of third parties.
2. This exclusion of liability shall not apply – in the event of damage caused intentionally or by gross negligence – in the event of a slightly negligent breach of material contractual obligations, including by our legal representatives or our vicarious agents; in this respect, we shall only be liable for the direct average damage that is foreseeable and typical for the type of product. Material obligations are those whose fulfilment is essential for the proper performance of the contract and which the Customer may regularly rely on to be complied with. – in the event of culpable injury to the life, body or health of the Customer, – in the event of fraudulently concealed defects and assumption of the guarantee for the quality of the goods, – in the event of claims under the Product Liability Act (ProdHaftG).
XIII. Limitation period
Claims asserted by the Customer for warranty and damages - for whatever legal reasons - are subject to a limitation period of one year commencing with the handover/delivery of the goods. The statutory periods shall apply to the claims referred to in section XI.2; in addition, they shall apply to defects in buildings or to delivery items that were used in buildings in accordance with their customary use and for the defectiveness of which we are responsible.
XIV. Production clause
Within the scope of the product-related contractual relationship, products which are released by the Customer after the initial sampling shall be deemed free of defects if the technical usability of the contractual products corresponds to the initial sampling models.
XV. Trade practices
In commercial dealings, the trade practices, in particular of the printing industry, shall apply, e.g. no obligation to surrender intermediate products such as data, lithos or screens which are created for the production of the final product owed, unless no deviating order has been placed.
XVI. Storage, archiving, insurance, operating items
1. Products accruing to the Customer, i.e. in particular masters, raw materials, data and data carriers and other items that may serve some future purpose as well as semi-finished and finished products, shall only be stored or archived by us beyond the time of handover of the final product to the Customer, its vicarious agents or the carrier if this has been expressly agreed and subject to additional remuneration. In this respect, we shall only be liable for intent and gross negligence
2. If the aforementioned items are to be insured, this shall be initiated by the Customer itself in the absence of an agreement.
3. Material procured by the Customer, regardless of the type, shall be delivered to us carriage paid and at the Customer’s risk. Receipt of the material is confirmed without assumption of a guarantee for the correctness of the quantity designated as delivered. In the case of larger deliveries, the costs associated with counting or checking the weight of the material as well as storage expenses shall be reimbursed.
4. The operating items used by us for the production of the contractual product, in particular printing plates, lithographs, screens and other items, shall remain our property, even if they are invoiced separately, and shall not be delivered unless otherwise expressly agreed in writing.
XVII. Contractual penalties, consequences of default
We shall only assume any contractual penalties or consequences of default agreed between the Customer with its customers insofar as we are liable in terms of substance and insofar as these contractual penalties or consequences of default have been communicated to us in writing prior to contract conclusion.
XVIII. Infringement of third party rights, compliance with statutory provisions, indemnification
1. The Customer shall be solely liable if the rights of third parties, in particular copyrights or industrial property rights, are infringed by the execution of its order.
2. The Customer shall be solely liable for ensuring that the ordered product complies with the statutory regulations, e.g. that any statutory labelling requirements are complied with.
3. The Customer shall indemnify us against all third-party claims asserted due to infringements of rights pursuant to section XVII. 1. and 2.
XIX. Confidentiality clause
1. The Customer undertakes to treat all protectable aspects of the business relationship as confidential. In particular, the Customer shall treat all commercial and technical details which are not in the public domain and which become known to it within the scope of the business relationship as a trade secret. Information or aspects of the business relationship which were already publicly known at the time of disclosure as well as information or aspects of the business relationship which were already demonstrably known to the Customer prior to disclosure by us shall not be subject to the obligation of confidentiality.
2. In addition, the Customer is obligated to maintain secrecy until two years after the end of the business relationship.
XX. Company details, publication of product illustrations
1. Subject to the consent of the Customer, we may refer to our company on the contractual products in a suitable manner. The Customer may only refuse consent if it has an overriding interest in this.
2. We reserve the right to use samples and illustrations of products manufactured by us for our catalogues, homepage and sales activities, unless customer protection has been expressly agreed in writing.
XXI. Place of performance, place of jurisdiction, applicable law, severability clause
1. The sole place of performance and jurisdiction for all disputes resulting from the contractual relationship is Coburg/Germany.
2. German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded, as well as those norms of international private law which would lead to the application of foreign legal norms.
3. Any invalidity of one or more provisions shall not affect the validity of the remaining provisions.
schreiner coburg. Eichhofweg 17. 96450 Coburg
