General terms and conditions of brandbook
I. Scope of application
The following terms apply to all orders. Any deviation shall be in writing only.
The client is the company that has placed the order, even if the delivery occurs to a different address. Any deviation shall be in writing only.
1. All prices stated in the contractor's tender are valid only if the job data on which the tender was based remain the same. The contractor's prices are exclusive of VAT. The contractor's prices are calculated ex works. Additional costs for packaging, freight, postage, insurance and other shipping costs are not included.
2. Later alterations made by the client and production stoppage caused by these alterations will be charged to the client. This includes repeated proofs requested by the client because of minor deviations from the master.
3. Layouts, drafts, conceptions, proof copies, samples and other preparatory work requested by the client will be billed even if the order is not placed. The terms of section IX apply mutatis mutandis.
1. Payment (net plus VAT) is due immediately, at the latest, however, within 30 calendar days of the invoice date without deduction. If the client pays within 10 calendar days, the contractor shall grant the client a discount of 2% on the amount invoiced, however excluding the costs for freight, postage, insurance or other shipping costs to the extent they are included in the invoice. The issue date of the invoice shall be the date of delivery, partial delivery or indication of readiness for shipment (obligation to collect goods, default in acceptance).
2. In the case of exceptionally large volumes of paper, other materials or preparatory work, the client may demand an advance payment.
3. The client can only set off claims that are undisputed or confirmed by a final and binding judgment. A client who is a registered merchant under the German Commercial Code (HGB) is not entitled to assert a right of lien or set-off. Rights according to § 320 of the German Civil Code (BGB) will remain unaffected, however, as long as and to the extent that the contractor has failed to fulfil the commitments specified in section VI 3.
IV. Default on payment
1. If fulfilment of a claim is endangered by a deterioration of the client's financial circumstances that has eventuated or was discovered only after conclusion of the contract, the contractor shall be permitted to demand an advance payment and the payment of all unpaid invoices including the ones not due yet, withhold undelivered goods and cease the continued processing of pending orders. The contractor is also entitled to assert these rights if the client defaults on payment. If the due date for payment has not been set by reference to a certain calendar date, the client will be deemed in default once 30 days have elapsed since the invoice was issued.
2. In the event of default on payment, the client shall pay default interest at the applicable discount rate of the Deutsche Bundesbank plus 8 percentage points. The contractor expressly reserves the right to claim additional loss or damage caused by the default.
1. The contractor shall conduct the delivery of the contract goods for the client with reasonable care, but shall only liable in the case of wilful misconduct or gross negligence. The goods shall be insured according to the respective conditions of the forwarding agent. In accordance with german postal law, the package delivery company will deliver all goods up to the road curb. Exceptions must be requested in advance and in good time. Deliveries to the doorstep, as well as storage of items due to recipient unavailability, and delivery after 5pm or on Saturdays, are at the customer's expense.
2. Delivery dates are only valid if explicitly confirmed by the contractor. If the contract is concluded in writing, the confirmations of delivery dates need to be in writing as well.
3. If the contractor defaults on the performance of its obligations, the client shall grant an appropriate period of grace. If the period of grace expires without result, the client may rescind the contract. Section 361 of the German Civil Code (BGB) will remain unaffected. The contractor shall be liable for loss or damage caused by its default only up to the value of the contract (own contribution excluding advance payment and materials).
4. Interruptions of operation in the business of the contractor or its suppliers - particularly strike, lock-out, war, upheaval and all cases of force majeure - shall not justify a termination of the contractual relationship. The principles of frustration of contract shall remain unaffected.
5. According to § 369 of the German Commercial Code (HGB), the contractor shall have a general lien on all film, lithographs, manuscripts, raw materials and other goods forwarded by the client until the full payment of all due debts arising in connection with the business relationship.
VI. Retention of title
1. The contractor shall only deliver goods subject to the retention of title described in more detail below. The foregoing also applies to all future deliveries, even if the contractor does not always expressly refer to the retention of title. The delivered goods shall remain the property of the contractor until full payment of all claims under the delivery contract.
2. The client shall handle the purchased goods with care until title to the goods has passed to the client. For as long as title to the goods has not yet passed to the client, the client shall notify the contractor without undue delay if the delivered goods are distrained or are at risk of any other form of third-party intervention.
3. The client may only resell the goods subject to retention of title ("retained goods") in the ordinary course of business. The client hereby assigns to the contractor the purchaser's claims on resale of the retained goods to the value of the total invoice amount agreed with us (including VAT). This assignment shall be valid irrespective of whether the purchased goods were resold before or after further processing. The client shall remain authorised to collect the debt even after the assignment. This shall not affect the contractor's authority to collect the debt itself. However, the contractor will not collect the debt as long as the client meets its payment obligations from the collected proceeds, has not defaulted on payment, and, in particular, no application to commence insolvency proceedings has been filed or payments suspended.
4. The client shall always adapt, process or alter the purchased goods in the name and on behalf of the contractor. In such a case, the client's expectancy with regard to the purchased goods shall continue to exist in respect of the altered goods. If the purchased goods are processed with goods not owned by the contractor, the contractor shall acquire a co-ownership interest in the new goods proportionate to the objective value of the contractor's goods as a percentage of the value of the (new) processed goods at the time of processing. The same applies in the event that goods are combined. Where the respective goods are combined such that the client's goods are deemed the principal component, it is deemed agreed that the client shall transfer its proportionate co-ownership interest to the contractor and hold the resulting sole ownership or co-ownership interest on behalf of the contractor.
5. At the client's request, the contractor agrees to release the security furnished to it where the value of the security exceeds the claims to be secured by more than 20%.
1. The contractor shall inspect all delivered goods and unfinished products sent for correction for compliance with the contract. When the product is declared ready for printing, the responsibility for errors shall pass to the client, except for errors committed during the production after this declaration or errors noticeable only after this declaration. The same shall apply to all other clearances for production given by the client.
2. All complaints must be lodged within a week of delivery. The contractor shall only be liable for hidden defects that could not have been detected after the immediate inspection if the notice of defects arrives at the contractor within 3 months after the goods have been shipped.
3. In the case of legitimate complaints, the contractor shall, at its election and to the exclusion of all other claims, reduce the price of the goods, touch up the goods and/or replace the goods up to the value of the contract, unless the complaint involves the absence of a warranted characteristic or the contractor or its vicarious agents are guilty of wilful misconduct or gross negligence. The same shall apply in the case of a legitimate complaint against the touched-up goods or delivered replacements. In the case of any delayed, denied or fruitless touch-up or replacement of the goods, the client may rescind the contract. Section 361 of the German Civil Code (BGB) will remain unaffected. The contractor shall not be liable for consequential loss caused by a defect unless the contractor or its vicarious agents is guilty of wilful misconduct or gross negligence. If the order includes the finishing or processing of printed goods, the contractor shall not be liable for impairment of the finished or processed goods unless the damage was caused by wilful misconduct or gross negligence.
4. Defects affecting one or several of the delivered goods shall not justify a complaint against the entire delivery.
5. With coloured reproductions, marginal differences to the original shall be deemed acceptable. The same shall apply to differences between press proofs and print run.
6. In the case of differing consistency of the deployed materials, the contractor shall only be liable to the extent of the contractor's claims against the particular supplier. In this case, the contractor shall be absolved from liability if the contractor's claims against the supplier are assigned to the client. The contractor shall be liable in the same way as a surety where no claims exist against the supplier due to fault on the part of the contractor, or such claims are unenforceable.
7. The delivery of up to 10% more or less than the ordered volume shall not justify a complaint. The delivered quantity shall be billed.
VIII. Storage, insurance
1. Models, raw materials, print substrates and other items suitable for re-utilisation, as well as unfinished and finished products shall only be stored beyond the date of delivery if this was arranged in advance and compensated specifically.
2. The contractor shall handle aforesaid items provided by the client with care until the date of delivery. The contractor shall only be liable for damage to such items in the case of wilful misconduct or gross negligence.
3. Insuring aforesaid items shall be incumbent upon the client.
IX. Scope of liability
If models or any other contract documents should be damaged or lost due to fault on the part of the contractor, the contractor shall be liable only for the material value, but under no circumstances for the intangible value or for consequential loss. In all cases, liability shall be limited to the value of the specific contract. Additional claims, including claims arising from a failure to perform due to breach of an obligation not otherwise governed by statute (positive Forderungsverletzung), shall be excluded. The contractor shall not be liable for external artwork, film, printing plates, other models, manuscripts, and other items that are not claimed by the client within four weeks.
X. Property, copyright
1. All items used by the contractor to produce the contract goods, especially film, lithographs, printing plates, stamps, dies and other models, shall remain the property of the contractor and shall not be shipped, even if they are billed separately.
2. The client shall be solely liable if executing the order would violate the rights of others, especially third-party copyright. The client shall indemnify and hold the contractor harmless against all claims made by third parties on the basis of any such violation of rights.
3. By ordering the goods, the client agrees, until any cancelation is made, that their name and/or company symbol will be featured and expressed by the contractor in this context. Equally, the client allows the visual display of the ordered goods as a reference product. In case the client does not wish to do so, it is sufficient to send a written, informal note to the contractor to end this use.
XI. Commercial practice
In business transactions the customs of the trade in the printing industry shall apply (e.g. no obligation to surrender possession of semi-finished products such as data, lithographies or printing plates produced for the production of the final product on order), provided the order does not specify otherwise.
Only under an express agreement and against special reimbursement shall products to which the Customer is entitled, particularly data and data carriers, be archived by the Company beyond the time of handing over the final product to the Customer or persons employed by him in performing an obligation. If the prespecified items are to be insured, the Customer himself must provide for this where there is no agreement.
The contractor may, with the client's permission, include an appropriate reference to the contractor's business on the contract goods. The client may only withhold its consent if the client has an overriding interest in doing so.
XIIII. Place of performance, jurisdiction, validity
1. If both parties are registered merchants within the meaning of the German Commercial Code (HGB), the place of performance and place of jurisdiction for all claims and legal disputes arising under this contract, including summary proceedings able to be disposed of on the basis of documentary evidence only (including those involving bills of exchange), shall be the domicile of the contractor.
2. If any clauses of this contract should be or become partly or wholly invalid, the remaining clauses shall continue to apply.
Current as of July 2016