The terms and conditions below apply to all services, including follow up orders, once these have been notified to the Principal on a single occasion. Differently worded agreements and orders, in particular should these change the wording of these terms and conditions shall only be binding on the Contractor once it has confirmed such in writing. The taking receipt and passing on of telephone and telegraphic orders shall take place at the risk and expense of the Principal. The Supplier reserves ownership rights and copyright in relation to drafts, samples and offers. These may not be made accessible to third parties, in particular not to competing companies and must be returned on request.
Unless expressly designated in writing as being binding, offers are always subject to confirmation. Prices are calculated in accordance with the costs at the time of the offer. Changes due to increases in wages, material price increases etc shall subsequently apply to offers and order confirmations. The Principal shall still be obliged to pay reasonable remuneration for drafts, sample creations in connection with an offer, should the engagement not be issued or should it only be issued in an amended form. The prices and terms and conditions which form the basis of an order shall only apply to the said specific order. In relation to follow up orders, the Contractor can, depending on its choice and without prior notification, take the prices and terms and conditions which are valid at that time as the basis or grant the previous terms and conditions once again.
In relation to the scope of the delivery obligation, the written order and the written order confirmation of the Contractor shall be solely decisive and binding. The contract shall not come into existence until the time of order confirmation by the Contractor. The Contractor shall have the right to rescind the contract or request advance payments or securities, should it receive information after the time of conclusion of the contract which brings the reliability of the Principal and its capacity to fulfil its payment obligations into question., Damages claims of the Principal in connection with the rescission of the contract shall be excluded.
The Contractor will endeavour to comply with delivery dates which have been agreed and confirmed in a non-binding manner. The delivery date will be postponed accordingly if the scope of work increases in relation to the original order. Fixed dates shall require written confirmation by the Contractor. All liability shall be excluded should compliance with the delivery delay be prevented due to force majeure, strikes, blockades or other circumstances for which the Contractor is not responsible. In such cases, both Parties can rescind the contract three months after the time of exceeding the original delivery date, free of charge for the Contractor. The delivery date can be reset by the Contractor, should the Principal request changes to the order. According to its choice, the Contractor can deliver or cancel deliveries on call, should these not be collected six months after the time of the order. In case of cancellation of a confirmed order by the Principal, all services provided by the Contractor up until this point must be paid for by the Principal. For example, this includes preliminary materials which are already in the warehouse, storage costs etc.
With the handover and acceptance of the goods without objection, the delivery shall be deemed to have been properly accepted. Shipping shall take place at the risk of the Principal, also in case that the costs are borne by the Contractor. Loading, shipping and customs charges shall be borne by the Principal. Insurance will only be taken out in case of separate agreement. Necessary special packaging and transportation protection will be charged for at cost price.
6 Payment terms
In case of provision of the goods, payment of the invoice amount is due in cash at the latest within 2 weeks of notification of completion and submission of the invoice. Other payment methods must be expressly agreed in advance. In case of non-compliance with the said payment deadline or other payment deadlines which have been agreed, default interest to the level of the debit interest of the banks will be charged. Retention of the payment or setting off against any counterclaims of the Principal shall be excluded. In case of larger orders, the Contractor shall be entitled to request an advance payment to the amount of half of the invoice sum for the further performance of the order or follow up orders. Should the Principal enter payment default, the Contractor can either retake possession of the delivered objects or, in deviation from the statutory provisions concerning attached sales, freely use these as best as possible at the expense and risk of the Principal or assume these as security, without the Principal being released from the obligation to fulfil the contract as a result. The Contractor shall be entitled to the same right in all cases where payment in accordance with the contract is called into question due to the information at hand, in particular in case of payment suspension, insolvency proceedings in or out of court, bankruptcy, compulsory administration or fruitless attachment by the Contractor or a third party.
7 Right of retention and reservation of ownership
The Contractor shall have a right of retention and right of lien in relation to the objects which came into its possession in connection with the order in connection with its claim under the order and its claims from previous services. In case of exercising the right of lien, a written notification to the last known address of the Principal shall suffice for the threat of sale of the lien. The Principal may only resell the goods delivered under reservation of ownership in the course of business and in accordance with its normal terms and conditions of business and with an extended reservation of ownership and an express reference hereto. The Contractor shall reserve the right of ownership in relation to all delivered items until full payment of the claim plus interest and any costs incurred until this point. Should the delivered items become an integral component of a single object, the reservation of ownership shall also apply in relation to the co-ownership which arises. The Principal shall be obliged to safeguard the delivered items against third party attacks and to immediately inform the Contractor of such attacks. Should the Principal resell items before these have been paid for in full, the claim against the third-party purchaser shall be deemed to have been assigned to the Contractor to the amount of the claim of the Contractor plus interest and any costs. The Contractor shall be entitled at any time to inform the third-party purchaser that the assignment has taken place.
8 Defect complaints
8a Defect complaints will only be acknowledged by the Contractor if these are received by the Contractor in writing within 14 days of delivery of the goods.
8b Should defect complaints be acknowledged by us, we are only obliged to retake possession of the goods in relation to which an objection has been raised and provide a replacement delivery or to reduce the purchase price accordingly, depending on our choice. All other warranty claims for damages and claims under positive breach of contract shall be excluded.
8c Should the goods in relation to which an objection has been raised have been altered or processed by the Buyer following receipt, all warranty claims shall be forfeited.
8d In case of a sale based on samples, minor deviations which are customary in the sector shall not give rise to an entitlement to assert defect claims. Quality guarantees shall require a special written agreement.
8e The Buyer cannot raise an objection in relation to quantity related deviations, should these remain in a framework which is customary in the sector (10% more or 10% less). This shall also apply to materials which are to be processed (for example head plates) which will be stored by the Contractor for up to one year.
8f Natural wear and tear and damage due to negligent or incorrect handling are excluded from the warranty. The warranty does not extend to the breakage of items (in particular breakage due to cold) and changes to the colour or structure of the delivered items (in particular alterations by plasticisers). 8g Imprints will be created at the risk of the Principal. Any defect complaints due to defects with printing or reading problems (in particular barcodes) shall not be at the expense of the Contractor.
8h The warranty obligation shall not apply if the articles are not sent back to the Contractor within one week of notification of the defect. The warranty shall be limited to work and objects created at the factory of the Contractor. In case of parts not manufactured by the Contractor and third-party services, the warranty shall be limited to the assignment of any claims against the supplier. The Warranty obligation shall also not apply if the defective parts have been altered or repaired at another workshop or by the owner itself, except in absolute cases of emergency. The warranty will not be assumed for temporary repairs which took place at the express request of the Principal. The provisions concerning delivery deadlines and liability shall also apply to improvement work and replacement deliveries. All other claims of the Customer shall be excluded, in particular all further claims to defect correction rescission, reduction and reimbursement of all types of losses. Construction changes shall remain reserved, provided that the order is not basically altered as a result.
8i The limitation period for defect claims of the Customer which are not subject to the period stated in Section 438 Paragraph 1 Number 2 of the German Civil Code (BGB) is one year following delivery of the goods, provided that the Customer has properly complied with its complaint obligation stated under Number 8a.
The Contractor shall only incur liability to pay damages in case of intent or gross negligence. However, the Contractor shall incur liability in case of simple negligence as follows: • For losses connected to injury to life, body or health • For losses connected to a breach of an essential contractual obligation However, in such a case the liability of the Contractor shall be limited to reimbursement of losses which are foreseeable and which occurred typically. The limits of liability above shall not apply should the Contractor have fraudulently concealed a defect or assumed a guarantee. The same shall apply to claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz). Should repairs be impossible or lead to disproportionately high costs, the Contractor shall merely be obliged to reimburse the current value of the item on the day when the damage occurred. The reimbursement of further indirect or direct losses shall be excluded. The liability of the Contractor shall not extend to additional contents of the goods, unless these have been specifically handed over to the Contractor for storage. The Contractor will not check whether the Principal is permitted to issue the order under copyright laws. Should a third-party claim be brought against the Contractor as a result, the Customer shall be obliged to release the Contractor from such claims.
10 Work tools and printed materials
Work tools and printed materials (films, artwork, engraved stamps, screens etc) shall, as a rule, remain the property of the Contractor, as all costs are only charged on a pro-rata basis. The Principal shall not be entitled to an exclusive right of use in relation to the work tools in which it participated.
11 Place of performance and place of jurisdiction – stamp costs and fees
Also in case of the provision of cheques and bills of exchange, which are always accepted on account of payment and not in lieu of performance, the exclusive place of performance and place of jurisdiction shall be the place of residence of the Contractor. Any stamp costs, discounts or other expenses and fees shall be borne by the Principal.
12 Closing provisions
The law of the Federal Republic of Germany shall apply, to the exclusion of all international contract law ordinances, in particular to the exclusion of the United Nations Convention governing the International Sale of Goods. Should any individual provisions of the contract, including these terms and conditions of business, sale and delivery be or become ineffective in full or in part, the validity of the remaining clauses shall remain unaffected thereby. The provision which is ineffective in full or in part shall be replaced by a clause which comes as close as possible to the ineffective provision in economic terms.
As of: 06/2014
Phone: 0049 (0) 25 61 / 98 29-0