General Terms and Conditions
1. Atrea of Validity, Definitions, General
1.1 These terms and conditions apply exclusively; we do not recognise business conditions deviating resp. dissenting from these conditions, particularly the purchasing conditions of the customer, unless we have expressly agreed to them in writing. Our general terms and conditions shall also apply in the event that, even by being aware of the conflicting or differing general terms and conditions of the customer against our own terms and conditions, we carry out the delivery without reservation to them. You have the choice between English and German contractlanguage.
1.2 Within the scope of an ongoing business relationship, our general terms and conditions also apply to all future business with the customer, even if they are not once more expressly agreed.
1.3 A consumer in the meaning of these general terms and conditions is any natural person who enters into a transaction with us for a purpose that cannot be attributed to either their commercial or their independent vocational activity. Entrepreneur within the meaning of these general terms and conditions is a natural or legal person or a legal partnership which, in concluding a legal transaction with us, is acting in execution of their commercial or independent professional activity. An orderer in the meaning of these general terms and conditions is both the consumer and the entrepreneur.
2. Conclusion of a contract
2.1 Our offer is non-binding. Technical alterations as well as changes in form and colour are reserved within reasonable limits.
2.2 On placing the order, the customer is making a binding declaration that we should provide the ordered goods or services. We send you an acceptance of order by e-mail within 5 days.
2.3 To be legally valid, our declarations of acceptance are required to be in writing. The acceptance is also valid by email. The same applies to supplements, amendments and subsidiary agreements.
2.4 With regard to our scopes of delivery and service, our order confirmation resp. our commercial letter of confirmation by e-mail is authoritative.
2.5 The conclusion of a contract with an entrepreneur takes place under the proviso that we are supplied correctly, on time and to the usual industry conditions by our suppliers. This applies only in the event that the non-delivery is not our responsibility, especially on the conlusion of a congruent hedging transaction with our suppliers. The orderer is to be informed of the unavailability of the goods/services without delay. Should he have already provided a consideration, this will be refunded to him immediately.
3. Delivey and administration of print data, order execution
3.1 Unless otherwise agreed in writing, we execute all orders as per the print data forwarded to us by the orderer.
3.2 The orderer is required to communicate this print data to us in the file formats detailed by us on our Internet platform and/or in our order forms at his own cost and risk. In particular, the orderer is solely and exclusively responsible for the completeness and accuracy of the data forwarded to us.
3.3 The orderer is obliged to provide us with the relevant data free of any so-called computer viruses; he is particularly obliged to use current virus protection programmes for this purpose. Otherwise, the orderer must compensate us for any damage caused.
3.4 The security of the data transmitted to us shall be the sole responsibility of the orderer.
3.5 We can and will check the data provided to us by the orderer, or from third parties on his behalf, only for obvious errors.
3.6 All print data delivered by the orderer, especially templates and data carriers, will only be archived by us beyond the date of delivery of the final product with a written agreement and in return for separate payment.
3.7 Should it be that we contractually archive print data from the orderer beyond the detailed date, for the future use of this archived print data, namely, the search for this data in the archive, its decompression, preparation for further processing and possibly the transmission of that data or the documents produced from it etc, the orderer is required to pay to us a separate fee to cover the said expenses.
3.8 Should contractually archived data be lost by us or become damaged, we will become liable for this only in accordance with the provisions of paragraph 8 of this contract.
4. Prices, Terms of Payment, Withdrawal
4.1 In the contractual relationship to a consumer, our prices contain, unless otherwise indicated, the statutory VAT. In the contractual relationship to an entrepreneur, all identified and agreed upon prices are net prices, accordingly, they are subject to addition of the applicable rate of statutory VAT on the date of delivery/performance.
4.2 All stated and agreed prices are, unless otherwise agreed, "ex works", i.e. from D-80807 Munich. The prices exclude packaging, transportation, insurance, collection fees and other charges.
4.3 Unless otherwise agreed in writing, the price list current at the time of concluding the contract is valid in each case.
4.4 Unless otherwise agreed, should the payment due need be paid in advance, by visa, mastercard or prepayment.
4.5 Cheques and bills of exchange are accepted only with specific written agreement and on account of payment.
4.6 For assessing the timeliness of payment due, always applicable is the date of receipt by us.
4.7 Advance and instalment payments shall not bear interest.
4.8 Should the orderer fall into arrears with a due payment, all other payments owed by him are due for immediate payment without any discount.
4.9 We are entitled, despite conflicting definements by the orderer, to credit payments firstly to his older debts, whereby in this case we have to inform the orderer without delay about the manner of settlement. If costs and interest have already been incurred, we are entitled to credit the payment firstly to the costs, then to the interest and finally against the principal.
4.10 Should circumstances become known to us which, to our conscientious and commercial discretion, are suitable to call the creditworthiness of the customer into question, if in particular a direct debit, a cheque or a bill of exchange is not honoured resp. is charged back, or if the orderer is more than two weeks in arrears, we are authorised to present our entire debt as due for immediate payment. We are then also entitled to execute any outstanding deliveries or services only against advance payment or the placing of collateral security and, until this occurs, to also defer further work on current orders.
4.11 Offsetting with counterclaims is excluded, in so far that these counterclaims are not recognized by us or are not legally determined. If the orderer is an entrepreneur, he may exercise his right of retention only if his counterclaim is based on the same contractual relationship and the claim underlying the law is undisputed or legally determined.
4.12 It will be sold exclusively printing products according to customer specifications, so that the law excluded the consumer's withdrawal from a distance contract (§ 312 para 4 No. 1 BGB)
5. Despatch, Packaging and Transfer of Risk
5.1 Except where specifically agreed in writing, delivery is effected "ex works" and thus from D-80807 München.
5.2 If the orderer is an entrepreneur, the risk is transferred to him as soon as the goods leave the supplying works or the orderer resp. someone charged by him (including a designated carrier) is made available in the supplying works; this also applies even if we are to bear the freight charges.
5.3 If the orderer is an entrepreneur: Should the despatch or the collection of the goods become delayed or impossible as a result of behaviour attributable to the orderer, the risk is transferred to the orderer with the notification to him of the readiness for despatch.
5.4 If the orderer is an entrepreneur: Conventionary goods reported as ready for despatch must be called for immediately, otherwise we are entitled to despatch them at our choice and at the expense and risk of the orderer or, at our discretion, to store and instantly raise charges for them.
5.5 In the absence of specific instructions from the orderer, we determine the carrier, the means and the route of despatch without assuming any obligation for the cheapest freighting.
5.6 If the orderer is an entrepreneur: With regard to special protective packagings, means of transport and transport equipment as well as transport insurance, we accept concern for them only at the express written request of the orderer; the costs incurred are to be borne by the orderer.
5.7 The orderer is to ensure that the ordered goods will be accepted at the listed delivery address during normal delivery times, especially those of the Deutsche Post AG. Otherwise, the orderer bears, in addition to the further incurred despatch costs, the costs arising for our increased processing time, which is agreed at a flat-rate sum amounting to 15 €; the right of the orderer to prove lower damages is not affected.
5.8 If the orderer is an entrepreneur: With regard to apparent transport damage, on taking delivery of the goods the orderer is required to arrange for the damage to be so established that, as a result of these findings, damage claims against the carrier are possible. Should the customer not adequately fulfill this obligation, he has to bear all of the consequences.
5.9 The orderer is required to ensure that he himself or, where appropriate, the recipient of the goods, immediately confirms the flawless condition of the product after delivery. In the relationship to an entrepreneur, the statutory provisions of the investigation and complaint obligations remain unaffected.
6. Delivery times, Delivery delay damages
6.1 Delivery dates and deadlines are non-binding information. They begin with the receipt of our order confirmation by the orderer, but not before clarification of all details of the order, not before receipt of the data to be obtained from the orderer, documentation and any approvals, and not before the receipt of an agreed advance payment. If consecutive deliveries after appropriate notice from the orderer have been agreed, we are released from the agreed delivery deadlines/delivery dates if the notices do not reach us as agreed, and particularly not when they are late or irregular. Further, the observance of delivery dates/deadlines assumes compliance with contractual obligations by the orderer, in particular compliance with the payment arrangements.
6.2 Non-binding delivery dates/deadlines are also always subject to the timely clarification of all details of the order, in particular the solving of all technical issues.
6.3 In the contractual relationship to an entrepreneur, we are no longer bound to a binding delivery date when we, in spite of the conclusion of congruent hedging transactions with our suppliers, are not supplied, not properly supplied or are not supplied on time; supplementary reference is hereby made to the provision in paragraph 2.5.
6.4 Delivery dates/deadlines specified resp. agreed by us relate fundamentally to the date of despatch of the goods within Great Britian. They are also counted as having been observed with notification of the readiness for despatch if, without it being our fault, the goods could not be despatched in time.
6.5 We are entitled to render partial deliveries and partial services at any time. From the delay of part deliveries or services the orderer cannot derive any rights in respect of the remaining partial deliveries or partial services.
6.6 With regard to timely transport, transport duration and arrival of the goods,we assume no warranty; our information is provided without exception in good faith, but with no committal.
6.7 In the event of delivery and service delays due to force majeure and to events that significantly complicate delivery/performance, or make it impossible - in particular strikes, lock-outs and import/export bans plus other authoritative orders, disruptions in the supply of raw materials, material and energy for which we are not responsible, fire, industrial, production and transport disruptions, unanticipated transportation problems, machine defects beyond our control, accidents and similar, even if they occur at our suppliers, their subcontractors or our subcontractors – we are also released from binding deadlines and dates. They entitle us to postpone delivery or performance for the duration of the impediment, plus a reasonable run-up time, or to withdraw from the contract, in whole or in part, due to the unfulfilled portion(s).
6.8 If the disability lasts longer than two months, after a reasonable grace period the orderer is entitled, in view of the unfulfilled portion, to withdraw from the contract. If, as a result of the above-mentioned events, the delivery time extends itself or through them we are free from our delivery obligations resp. through them we step back from the contract, the orderer cannot derive from this any claims for damages. We can only invoke the above circumstances if we have immediately informed the orderer.
6.9 The provisions in the foregoing paragraphs 6.7 and 6.8 shall apply accordingly if the orderer falls into arrears on payment, his obligations to cooperate in the resolution of commercial or technical questions are not immediately complied with or the orderer has delayed contract execution in other respects.
6.10 For delay damages of the orderer we are liable as follows:
6.10.1 In the event of death or physical and health damage attributable to us, we have unlimited liability.
6.10.2 This also applies if we or our agents, in regard to the delay, can be imputed with intent or gross negligence.
6.10.3 In cases of slight negligence, liability is excluded if the delay relates to immaterial contractual obligations.
6.10.4 Should our delay be related to significant contractual obligations, but no imputation can be made to us or our agents of intent or gross negligence, the claim of the orderer is limited to a default compensation of 0.5% for each completed week of delay, at the very most up to 5% of the invoice value of deliveries and services affected by the delay.
6.10.5 In addition, the statements of liability limitation as detailed in paragraph 8 of these general terms and conditions also apply.
7. Liability for Defects (Warranty)
7.1 The following applies for the existance of defects:
7.1.1 Insignificant variations in colour, quality, etc. are not considered to be defects.
7.1.2 With goods specially manufactured for the orderer, excess or short deliveries of up to 5% of the ordered quantity are permitted under calculation of the exact quantity delivered.
7.1.3 The following applies for our samples and exemplars (hereafter referred to as samples):
Our samples are often produced under conditions other than those in the subsequent production process. Thus, it is unavoidable that the goods to be supplied by us are not always fully identical with our samples.
The characteristics of our samples are thus not to be regarded, within the meaning of Para. 434 I sentence 1 BGB, as the agreed condition of the goods to be supplied by us. Rather, relevant to the delivery of our goods are only the relevant technical standards and an approximately expressed contractually agreed characteristic.
7.1.4 If the orderer is an entrepreneur, he is required to inspect the delivery immediately upon receipt for completeness and freedom from defects. Obvious and, with proper examination, recognisable defects are to be immediately notified by telephone and, within 10 days of receipt of the goods, additionally in writing (sufficient is a fax or e-mail). This applies correspondingly to non-obvious and, also with proper inspection, non-visible defects, as soon as the orderer has identified the deficiencies. Timely notification is sufficient for observance of the deadline.
If the entrepreneur fails to comply with his investigation and notification liabilties, the assertion of any warranty claims for the affected defects is excluded.
7.1.5 For mutual trade transactions between merchants Para. 377 HGB applies additionally.
7.1.6 In cases of justified complaint, we are initially entitled to effect a repair or a replacement delivery. With regard to identical errors, we are to be basically conceded two attempts at supplementary performance.
7.1.7 If the supplementary performance (repair or replacement delivery) is unsuccessful, at his option the orderer can fundamentally demand a price reduction (reduction) or cancellation of the contract (withdrawal). If it is only a small breach of contract, in particular a minor defect, the orderer has however no right of withdrawal.
7.1.8 If the goods supplied by us are only partially defective, the orderer can then only withdraw from the contract in full if a defect-free part delivery is of no interest to him, otherwise, he remains committed to accept the defect-free element of the goods.
7.1.9 The above-mentioned warranty provisions apply accordingly for the repaired or substitute delivered goods.
7.1.10 Warranty claims against the enterpriser shall expire one year from the date of delivery of the goods unless, in relation to the relevant defects, fraudulent conduct could be imputed against us.
8. Limitations of Liability
8.1 Compensation and reimbursement of expenses (hereinafter: damage claims) by the orderer for whatever legal reason, especially because of the violation of obligations from a contractual obligation or a tort, are excluded.
8.2 This does not apply in cases of the takeover of a guarantee or a procurement risk.
8.3 This also does not apply if claims are made against us under the Product Liability Act, in cases of intentional or grossly negligent conduct by us or our agents, with injury to life, limb or health and the violation of essential contractual obligations.
8.4 Damage claims for the violation of essential contractual obligations is, however, limited to those of the type, on delivery or performance, foreseeable, contract typical and direct average damages, in so far as there is no willful misconduct or gross negligence or there is liability due to injury to life, limb or health.
8.5 In so far as our liability is excluded or limited, this also applies in relation to the personal liability of our managing director, employees, agents and assistants.
9. Advertising, our Copyright, Rights of Third Parties
9.1 We have the right to retain copies of the contracts as a quality pattern and to use them - anonymised - in the context of advertising.
9.2 Our deliveries and services do not include the transfer of copyright.
Accordingly, we reserve on our graphic designs, on image and text marks, layouts, etc. any and all property rights and copyrights. The transfer of these rights requires a separate written agreement.
9.3 The orderer must ensure that with the execution of his order no third party rights, in particular copyrights, are injured. Otherwise, he has to release us from all claims by third parties which could be imputed against us from the relevant order by third parties.
10. Retention of Title
10.1 Until the fulfillment of all demands - for entreprisers, including all balance claims from open accounts - to which we are entitled on every legal basis against the orderer, now or in the future, the following securities are to be granted to us, which we, on request and at our discretion, will release insofar as the realizable value exceeds the demands by more than 20%.
10.2 The delivered goods remain our property until full payment (conditional goods).
10.3 The orderer may only sell the conditional goods in the ordinary course of business to his normal trading conditions and as long as he is not in default.
10.4 The orderer hereby assigns to us his claims with all ancillary rights - including any balance accounts receivable – to the sum of the invoice amount (including VAT) of our claim as security, which arise for him from the further sale or for any other legal reason against his buyers or third parties. We accept this assignment.
10.5 If the orderer has sold the demand within the scope of genuine factoring, our demand is due immediately and the orderer assigns the in its place claim against the factor to us and forwards the proceeds immediately to us. We accept this assignment.
10.6 The authorisation of the orderer to sell the conditional goods in the ordinary course of business end with his late payment or with our notice of revocation due to a sustained deterioration of the financial situation of the orderer, at the latest however with his suspension of payments or with the filing of insolvency proceedings over his assets.
The orderer is then obliged to hand to us on request a detailed statement of his entitled demands, with the names and addresses of customers, amount of each demand, invoice date, etc., to provide us with all of the necessary information to assert the assigned demands and to permit the verification of these demands.
10.7 A pledging or collateral assignment of the conditional goods or the assigned demands is inadmissible.
10.8 In the event of third-party access to the conditional goods, especially with seizures, as well as any other - possibly only forthcoming, but to be expected - infringement of our rights, the orderer is obliged to indicate it is our property and to notify us immediately.
10.9 On any failure by the orderer against his obligations under this Section 10, we are entitled, after an appropriate reasonable extension, to declare the entire balance for the conditional goods as due immediately or to require collateral; an extension is not required if it could affect or risk our rights or economic interests or if a serious infringement by the orderer against the provisions in this Clause 10 has occurred.
Should the orderer not pay the entire balance within 7 days after receiving appropriate notice from us, or he does not provide the required collateral within the same period, his usage rights on the conditional goods shall cease. We are then entitled to demand their immediate return, on the costs of the orderer and with the exclusion of any liens. For this event the orderer grants us now irrevocable access to the location of the conditional goods and authorises us to withdraw them.
10.10 Notwithstanding the payment obligation of the orderer, we are entitled to make the best possible exploitation in the open market of the conditional goods taken back into our possession or to take them over to the prevailing market price.
11. Governng Law, Venue, Place of Delivery, Severability and Data Processing
11.1 Applicable for these general terms and conditions and all legal relations between us and the orderer is exclusively the law of the Federal Republic of Germany. Any application of the Agreement of the United Nations Convention dated 11.04.1980 on Contracts for the International Sale of Goods (so-called UN Sales Convention) is excluded.
11.2 Should the orderer be a merchant, a legal entity under public law or a public special fund, the place of delivery is D-80807 München.
11.3 Should the orderer be a merchant, a legal entity under public law or public special assets, the court München is agreed as venue. However, we are entitled to sue the orderer at the court responsible for his place of residence or company office.
11.4 Should any provision of these general terms and conditions or any provision in any other agreement between the customer and us be or become invalid, the validity of all other provisions and agreements are not affected.
