Terms and Conditions of Delivery and Payment
§ 1 Scope - requirement of written form
(1) Our terms and conditions apply exclusively; we do not accept any contradicting or differing terms and conditions of customers, unless we have expressly agreed to them in writing and signed. Our terms and conditions apply in any case, even if we fulfil an order without any reservation and in knowledge of contradicting terms or terms and conditions differing from ours and deliver to the customer and accept its payment.
(2) Our terms and conditions of delivery and payment are valid only in relations with entrepreneurs as defined in § 14 BGB (German Civil Code).
§ 2 Quotations and acceptance
(1) Our quotations are binding only if made in writing.
(2) Orders will be deemed accepted only if they are confirmed by us in writing or if fulfilled by us within an appropriate period of time after they were received by us. In such case, our invoice will be deemed the order confirmation.
§ 3 Artwork - tools
If not supplied or provided by the buyer, we reserve the title and copyright to all and any artwork, cutting facilities, tools, printing plates, lithos and comparable items. The buyer may buy such under a separate purchasing agreement.
§ 4 Delivery - passing of risk - shipment
(1) If not expressly agreed otherwise in the sales contract, all sales objects will be shipped "ex works" (EXW, Incoterms 2000).
(2) The risk of loss or damage to the sales object will pass to the buyer at the time the buyer is informed by us that the sales object is ready for being picked up by it or that it has been provided to the forwarding agent for shipment.
(3) At the buyer's request, we will also ship the sales object to its destination, without prejudice to the passing of the risk of loss or damage as provided under paragraph 2. If not agreed otherwise, we will select the method and route of shipment and the carrier to the best of our judgement.
§ 5 Term of delivery - Remedy in case of default
(1) If not agreed otherwise, our written order confirmation will be relevant for the term of delivery. Prerequisite for the beginning of the term of delivery stated by us is a binding agreement on all details characterising the sales object and, including but not limited to printed items, receipt of the approved galley proof. If such term of delivery is suspended due to the behaviour of the buyer, we will be entitled to set a new appropriate term of delivery by notifying the buyer.
(2) Our fulfilment of our delivery obligation requires the timely and proper fulfilment of the buyer's obligations.
(3) Partial deliveries are permitted if they are reasonable for the buyer.
(4) In case of a default in delivery, the buyer is entitled to withdraw from contract if an appropriate period of grace lapsed without success of which it has notified us in writing. The requirement of setting a grace period is not binding if we seriously and finally refuse performance, if a fixed date was agreed where time was of the essence (§ 323 para. 2 no. 2 BGB [German Civil Code], § 376 HGB [German Commercial Code]) or in case of particular circumstances that justify immediate withdrawal from contract after considering the mutual interests of the parties.
(5) If the buyer asserts damage claims for delay in performance, our liability will be limited to the amount of predictable and typical damage, to the extent we are not blamed for intentional breach of contract.
§ 6 Buyer's obligations
(1) If the buyer violates its obligation to accept the sales object or other duties to cooperate, we will be entitled to demand damages for any damage incurred, including any additional expense, including but not limited to storage costs. We are also entitled to bill the sales object.
(2) If other dates are not expressly agreed, orders for delivery on demand must be called within a period of no more than six months. If the buyer does not request delivery of the full order within such period, it will be deemed a violation of the buyer's obligation to accept delivery of the not yet called quantities. Therefore, our remedies shall be the ones stated under above paragraph 1.
(3) If the prerequisites under paragraphs 1 or 2 are met, the risk of accidental loss or accidental deterioration of the sales object will pass to the buyer at the point of time at which it defaults in acceptance or performance. Subject to any further claims.
§ 7 Force majeure
(1) If, for reasons of force majeure, we are unable or it becomes unreasonable for us to comply with our contractual obligations such obligations will be suspended until the obstacle is remedied. This applies even if we are in default already. We are obliged to notify the buyer immediately of the begin and end of such case of force majeure. If such an obstacle persists for more than three months each party will be entitled to withdraw from contract; any statutory rights of withdrawal will remain unaffected from this.
(2) Force majeure under paragraph 1 means external, unforeseen and unavoidable obstacles, such as labour disputes, acts of god, shortage of raw materials or energy, fire, war and riots or other occurrences for which we are not responsible, irrespective of whether they occur at our own company or at another, but are critical for the production or transport of the sales object.
§ 8 Prices - shipping costs - safety - payment terms
(1) If our order confirmation does not provide otherwise, our prices are to be understood "ex works" (EXW, Incoterms 2000) Heilbronn, excluding packing and pallet fee and plus statutory value added tax.
(2) Notwithstanding the provisions in paragraph (1), we will bear the shipping costs for all orders with a net order value (without value added tax) of no less than - 500, excluding pallet fee, to the general cargo receiving station next to the recipient's address in Germany, excluding overland transport costs. The same applies for deliveries with own truck, by private haulage. In case of postal, express or parcel shipment, any freight costs exceeding the general cargo rates will be borne by the buyer.
(3) For orders with a net order value (without value added tax) of less than Euro 250, we will charge a surcharge for small quantities of Euro 25.
(4) Our price lists are not binding. Unless a differing price is stated in our order confirmation, the current prices valid on the date of our order confirmation will apply. If between the date of order confirmation and delivery there is a significant increase in costs or expenses for production, storage or transport, including but not limited to changes in taxes or duties for raw material / material prices or changes of the specifications through the buyer or currency fluctuations, the contracting partners will be obliged to renegotiate the prices.
(5) If we process special custom-made papers or special formats, we reserve the right to process and bill the full quantity supplied by the paper producer. In case of partial quantities, we generally supply and bill the smallest original packing unit.
(6) Partial shipments may be billed separately. If partial shipments are made at the buyer's request we will be entitled to bill any additional costs incurred through this.
(7) We reserve the right to demand payment in advance or provision of security in the amount of the invoice value of a shipment if circumstances arise or if we become aware of such that may compromise collection of our outstanding debts. If the buyer does not pay or provide security within an appropriate period from our request, we will be entitled to withdraw from contract.
(8) If our order confirmation does not provide otherwise, the sales price is due and payable net (without any deduction) within 30 days from date of invoice. For payment within 14 days from date of invoice, we grant a cash discount of 2 %, except for first-time customers or promissory notes. If the buyer defaults on payment we will be entitled to demand late interest in the amount of 8 % above the relevant base rate p.a.
(9) Notwithstanding any other rights we may have in case of buyer's default in payment we will be entitled to withhold any other outstanding delivery under the contract or other similar contract from the business relationship with the buyer until payment of the sales price is received in full.
(10) Cheques, bills of exchange or assignments of receivables from third parties will be accepted as conditional payments only and not as a discharge. Acceptance of such does not mean the payment term of the original receivable is extended. Discount charges and stamp duties will be borne by the buyer.
§ 9 Retention of title
(1) We reserve the title to the sales object until all and any receivables from our ongoing business relationship with the buyer are paid in full.
(2) The buyer must handle the sales object with care.
(3) The buyer must inform us in writing immediately if the sales object is distrained or otherwise exposed to third party disposal so that we can take action under § 771 ZPO [German Code of Civil Procedure]. To the extent the third party is unable to reimburse the court and out-of-court costs of an action incurred by us under § 771 ZPO, the buyer will be liable for the loss incurred by us.
(4) The buyer is entitled to sell the sales object in the ordinary course of business; however, the buyer hereby assigns all receivables in the amount of the invoice total (including VAT) to us resulting from the sale to its customers or third parties, irrespective of whether the sales object has been processed or not prior to selling. Even after their assignment, the buyer continues to be entitled to collect the receivables. This does not affect our authority to collect the receivables ourselves. However, we undertake not to collect the receivables as long as the buyer fulfils its payment obligations from the collected proceeds, is not in default of payment and, including but not limited to, a petition to institute insolvency proceedings has not been filed or payments have not been stopped. If this is the case, however, we may request that the buyer informs us of the assigned receivables and their debtors, that it provides all the information necessary for collection, it supplies us with all related documents and informs the debtors (third parties) of the assignment.
(5) Any processing or alteration of the sales object through the buyer is always done in our name. If the sales object is processed with other objects not belonging to us we acquire partial ownership in the new object, in the ratio of the value of the sales object (invoice total including VAT) to the other processed objects at the time of processing and the processed value. The buyer will store for us the produced object in our sole or joint ownership, free of charge. Otherwise, the same applies for the produced object that applies for the sales object delivered under retention of title.
(6) If the sales object is mixed or inseparably joined with other objects not owned by us paragraph 5 applies accordingly, provided that, if it is mixed or joined in a way that the buyer's object must be considered the principal object it will be deemed agreed that the buyer assigns proportionate ownership to us.
(7) We undertake, on the request of the buyer, to release the securities to which we are entitled if the value of these securities exceeds the secured receivables by more than 10 %; it is in our equitable discretion to choose the securities to be released, under consideration of the legitimate interests of the buyer.
§ 10 Quality - Remedies in case of defects
(1) We will execute the order in accordance with the general state of the art, meeting the tolerances that are technically necessary with regard to the material and the process, and in a quality customary in the trade. We reserve scrap as customary in the trade, customary in the trade differences in colour, weight and stock composition and, in case of custom-made products, differences in quantity due to production technology of up to 10 % or, in case of small volumes of up to 25,000 units, up to 20 %. This applies too if the order was based on a sample product.
(2) The buyer is obliged to examine the artwork and specifications presented and to sign and return them and to add any corrections clearly and unambiguously. If a galley proof is not requested, the signed artwork or specifications determine the agreed quality.
(3) A prerequisite for the buyer's rights under the warranty terms is that it has properly complied with its examination obligations and the requirement to give notice of defects pursuant to § 377 HGB [German Commercial Code]. The buyer will allow us to immediately examine the sales object claimed defective, upon notification and at the usual business hours.
(4) If at the passing of the risk (§ 4 para. 2) a defect in the sales object exists it is in our discretion to choose the remedy and either remove the defect or supply a new object that is free of defects. If removal of the defect or supply of an object free of defects both incur inappropriately high costs we will be entitled to reject remedying the defect.
(5) The buyer's right to withdraw from contract or to demand reduction of payment is subject to the statutory provisions.
(6) For damage claims due to defects § 11 applies.
§ 11 Damage claims - scope of liability
(1) In any case, except for default under § 5, our liability with regard to damage claims - whether contractual or non-contractual - will be subject to the following terms, exclusively:
(2) If we fraudulently conceal a defect in the sales object or warrant the quality of a sales object we will be liable for damages as provided by the law.
(3) Further, we are liable for damages resulting from personal injury, bodily harm or damage to health due to negligent or intentional breach of duty by us, including our representatives or employees, in accordance with the statutory provisions.
(4) We are also liable by law if the buyer asserts damage claims resulting from intentional or gross negligent behaviour by us, including our representatives or employees, or if we have culpably violated a contractual obligation. If we are not blamed for intentional behaviour our liability for damages will in those cases be limited to foreseeable and typical damage.
(5) Further, we are liable under the imperative provisions of the product liability act of 15 December 1989.
(6) Otherwise, our liability for damages is excluded. Therefore, if not provided otherwise in above paragraphs 2 to 5, we are not liable for damage that has not occurred on the sales object itself (for example, lost profit or other mere pecuniary loss of the buyer) or for damage from violation of secondary obligations resulting from a relationship under the law of obligations or the law that are no essential contractual obligations (for example, inaccurate advice, custody or explanation, design of packing or instructions regarding handling), and for claims from non-contractual liability including product liability under § 823 BGB [German Civil Code]. Any claims that have arisen prior to entering the contract remain unaffected by this provision.
(7) To the extent that our liability is excluded or limited this applies for the personal liability of our officers, executives, employees, representatives, agents and servants too.
§ 12 Time bars
(1) Claims for remedying defects in the sales object will become time-barred after 1 year from passing of the risk (§ 4 para. 2), unless the buyer asserts claims for fraudulently concealed defects or based on a longer warranty period granted by us for the quality of a sales object.
(2) Withdrawal from contract and reduction in price for defects in the sales object are ineffective pursuant to § 218 BGB [German Civil Code] if the claim for remedy has become time-barred.
(3) Time bars of recourse claims subject to the provisions on the sale of consumer goods (§ 479 BGB) remain unaffected by paragraphs 1 and 2.
(4) For time bars for damage claims, the following applies:
(a) The time bar is 1 year.
(b) The time bar period for claims for defects in the sales object begins with passing of the risk (§ 4 para. 2).
(c) For all other claims, the time bar period begins at the point of time the claim has arisen and the buyer has become aware or would have been able to become aware of the circumstances on which the claim is based and the fact that we are the liable party. It ends no later than upon expiration of the statutory maximum periods under § 199 para. 2 and 3 BGB.
(d) However, the statutory periods of limitation for all claims for gross negligence, warranty, personal injury, bodily harm or damage to health and claims under the product liability act apply.
§ 13 Place of venue - place of performance - governing law
(1) Exclusive place of venue for all disputes in connection with the contract and its performance is our registered place of business; however, we are entitled to sue the buyer at the competent court for its registered place of business.
(2) Place of performance is our registered place of business if not provided otherwise in our terms and conditions of delivery and payment and our order confirmation.
(3) Governing law is the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).