§ 1 Scope of Application
- The legal contract between the Buyer and us is governed exclusively by the following Terms and Conditions.
- For commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310, the following terms apply: conditions which oppose or deviate from our General Terms shall not be accepted unless we expressly agree to these conditions in writing; this also applies if we, in spite of knowing the deviating terms, execute delivery without reservation; the following General Terms and Conditions shall apply for all future contracts even if there is no further reference to their applicability.
- The contractual language is German.
§ 2 Offer and Conclusion of Contract
I. For commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310, the following terms apply: Our offers are non-binding and subject to changes unless we expressly designated them as binding in writing. Warranties are only binding for us, if and insofar they are designated as such in our offer or order confirmation and if also our obligations for the warranty are stated in detail.
II. Your order shall be considered a binding offer. We have the right to either accept your order by delivering the goods within two weeks or by sending you a confirmation indicating a later delivery date within this period.
III. We exclusively reserve the ownership and copyright to samples, drafts, cost estimates and other, including electronic form. For commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310, the following terms apply: These documents may not be made accessible to third parties and are to return immediately when requested.
§ 3 Prices and Terms of Payment
- The costs for construction work to be carried out by the customer are not included in our prices.
- Our prices are stated excluding freight and packaging charges unless we agreed otherwise. The prices are valid for the scope of service and delivery stated in the order confirmation.
- For commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310, the following terms apply: Unless stated otherwise in the order confirmation, our prices are stated ex works, excluding freight, packaging, insurance, montage, incidental costs and sales tax valid at the delivery date; these positions will be indicated separately on the invoice.
- Unless we agreed otherwise in writing, the invoice amount is to be paid without deduction.
- For commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310, the following terms apply:
a) Bills of exchange and cheques will only be accepted on account of performance. Discount charges and exchange costs are at your expense.
b) Even if a notice of defect or counterclaims are enforced, you are only entitled to set-offs, if the counterclaims are found to be legally valid, if we accepted them or if they are indisputable; you are only entitled to make use of your right of retention, if the counterclaim refers to the same sales contract, if it is found to be legally valid, if we accepted them or if they are indisputable.
c) Depending on the contract value, we reserve the right to demand payment in advance.
§ 4 Time of Delivery, Time of Performance and Delay of Payment
I. For commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310, the following terms apply:
- Provided that we have concluded a congruent coverage transaction with own suppliers in order to fulfil the sales contract, we are not obligated to deliver your order if our own supplier does not supply us with the goods, does not supply us in time or if he does supply us with wrong goods. In case of such an event, we will immediately notify you. Payments which may have already been made up to this point will be repaid at once.
- The risk will be transferred to you in the moment that the product has left our distributing warehouse, this also includes the transfer of liability and the risk of accidental loss, loss or deterioration, for instance due to fire, water, storm, theft or burglary. This also applies if we execute further services, particularly if we bear the freight charges or if we deliver the goods. Unless agreed otherwise, we decide on the transport route and means. The risk will be transferred to you when the consignment is handed over to a haulage contractor or carrier or when the consignment is loaded onto own vehicles in order to transport it to you. Provided that a formal acceptance of the goods is required, the risk is transferred with acceptance.
II. Delivery dates are only valid when expressly confirmed by us in writing. If the contract is made in writing, the confirmation of delivery date has to be in writing as well. Delivery dates outgoing from distributing warehouse Illertissen.
III. If the fulfilment of our payment claims is at risk due to a deterioration of your financial circumstances which either occurred after the conclusion of the contract or which was revealed afterwards, we are entitled to demand advance payment and immediate payment of all outstanding invoices, irrespective of their due dates; we are also entitled to withhold the goods which are to be delivered and cease production of further orders. This also applies if you do not fulfil payment demands in spite of a reminder following a default.
IV. 1. In the event of a performance default, you have to grant us an adequate additional period of time. If this additional period of time passes without any progress, you may withdraw from the contract, § 361 of the German Civil Code remains unaffected. The replacement claims of such damage caused by default are limited to the total of the order value (personal contribution excluding prior concession and materials).
2. In the event of payment default, default interests of a rate appropriate to current market prices will be due. This shall not exclude assertion of further default damages.
V. Interruptions of operations, particularly strike, lockout, war, uproar and all other cases of force majeure – both in our business entity and in our supplier’s business entity – do not entitle you to terminate the contractual relationship. The principles of the frustration of contract shall remain unaffected.
§ 5 Reservation of Ownership
- The object of purchase remains our property until all payment demands are fulfilled.
- Furthermore, the following terms apply for commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310:
a) We exclusively reserve the ownership to each of our sold goods until all claims which arise from the ongoing commercial relationship, including all accessory claims, have been fulfilled by you; in case of payment by bill of exchange or cheque, the delivered goods will remain our property until they have been cashed (§ 449 I German Civil Code).
b) This shall also apply when payment for certain goods, designated by you, has been made. The itemisation of claims in a current invoice as well as the statement of account and its acknowledgement shall not affect the reservation of ownership. You must store all items which remain in our property free of charge and with all due commercial care.
c) You are obligated to immediately notify us of access by third parties to our goods, for instance in the event of seizure, as well as of possible damages or of the destruction of the goods, by handing over all documents which are necessary for the objection.
d) We are entitled to withdraw from the contract and to demand the return of the goods in the event of breach of contract, in particular in case of payment default or breach of duty with reference to the conditions stated in the aforementioned two paragraphs.
e) You are entitled to resell the goods in the proper course of business. You do not have any other rights of disposal over the reserved property. You are, in particular, not allowed to pawn the goods or to convey them as collateral. You are obligated to impose our reservation of ownership on your purchasers. Already now, you transfer all payment claims amounting to the total invoice amount to us, which result from the resale to third parties, including all accessory rights. We accept this assignment of claim. If the resold goods are in our co-ownership, the assignment of claims ranges over the amount corresponding to the share of our co-ownership. According to the assignment of claims, you are entitled to the collection of accounts receivables. However, we exclusively reserve the right to collect the accounts receivables from the corresponding debtor ourselves, as soon as you do not honour your financial commitments and default. On our request, you are obligated to hand over all information and documents which are necessary for the assertion of claims towards your purchaser. The redemption of goods or the claim for return shall not constitute a withdrawal from the contract. You hereby already agreed to grant a person sent by us in order to collect the reserved property entrance to your premises.
f) The editing and processing of the goods by you shall always be carried out in the name of us and on our behalf. If the goods are being processed with objects that do not belong to us, we shall acquire co-ownership of the new object in a ratio of the value of the goods delivered by us to all other processed objects. This shall also apply in the event that the goods are being mixed with objects that do not belong to us.
g) We undertake to release collaterals, which are lawfully entitled to us on the basis of this agreement, on your request insofar as their value exceeds the claims which are to be secured by more than 20 %. The selection of collaterals to be released shall be our responsibility.
§ 6 Warranty Claims
- Warranty towards consumers in case of second-hand articles
Your claims for defects concerning second-hand products are subject to the statute of limitations after one year from the delivery of the sold product to you. This regulation excludes claims for damages, claims for maliciously concealed defects and claims from a guarantee which we have given for the condition of the goods. For these excluded claims, the statutory period of limitation applies.
- Warranty towards commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310:
a) Claims for defects require that you have fulfilled your inspection duty and the obligation to notify defects as stated by the Commercial Code § 377.
b) In the event of an existing defect, we shall either resolve the defect (rectification) or deliver a replacement, if you are able to prove that there had already been a defect at the moment of passing the risks. During the rectification, the reduction of the purchase price or the withdrawal from the contract by the business partner are excluded. This shall not apply if we are entitled to the refusal of rectification on the basis of statutory regulations. In the event of rectification or replacement delivery, we undertake to bear all necessary expenses in order to fulfil subsequent performance, in particular transport, infrastructure, labour and material costs, insofar as these costs do not increase because the object of purchase has been moved to a location deviating from the place of performance.
c) In the event of second-hand articles, all warranties shall be excluded.
d) In the event that we have either carried out a rectification twice or a replacement delivery once without resulting in the removal of the defect as well as in the event that we unjustifiably refuse the necessary rectification or replacement delivery, cause improper delays or if a rectification cannot be expected of the business partner due to other reasons as well as in the event that the requirements of §§ 281 II or 323 II of the German Civil Code are fulfilled, the business partner is entitled to claim statutory remedies for withdrawal and reduction instead of rectification or replacement delivery and the business partner is entitled to claim a damage compensation and the right of indemnity, the latter according to the following regulations concerning damage compensation stated in these General Terms for Supply and Service.
e) Any components which are replaced under warranty shall become our property.
f) Warranty claims are subject to statute of limitations after 12 months from the delivery of the product to you. This shall not apply insofar as the law stipulates longer periods of limitation according to § 438, article 1, point 2 (items for buildings), §§ 478, 479, article 1 (claims to recourse), § 634a, article 1, point 2 (construction defects). We shall be liable for replacement components or rectification until the warranty for the initially delivered product expires. Furthermore, as stated in part 1, claims for damages, claims for maliciously concealed defects and claims from a guarantee which we have given for the condition of the goods are excluded from this regulation. For these excluded claims, the statutory period of limitation applies.
§ 7 Limitation of Liability
- For consumers according to the German Civil Code § 13, the following terms apply: We exclude the liability for slightly negligent breaches of duty insofar that they do not concern any substantial contractual duties, damages resulting from the injury of life, body or health or insofar that they do not concern any warranties or claims referring to the Product Liability Act. The same shall apply for any breaches of duty caused by our vicarious agents and our legal representatives. In particular, the substantial contractual duties include the obligation of handing over the object of purchase to you and providing the ownership thereof for you. Furthermore, we are obligated to provide you the object of purchase without any material deficiencies or deficiencies in title.
- For commercial businesses, legal entities under public law and separate assets under public law as defined by the German Civil Code § 310, the following terms apply:
a) Unless agreed otherwise, all your claims for compensation of any damages, including also claims for reimbursement of expenses and consequential damages, in particular due to all breaches of duty resulting from contractual obligation and tortious act, shall be excluded. This exclusion of liability shall also apply in the event that we have deployed any vicarious agents or assistants. In the aforementioned events (part 1 and part 2), we shall only be held liable if we, our executives or vicarious agents can be accused of gross negligence or intent.
b) According to statutory regulations, we shall be held liable in case of culpable breach of fundamental contractual duties (contractual obligations) by us, our executives or our vicarious agents. A fundamental contractual duty exists if the breach of duty refers to an obligation on whose fulfilment you relied and you had the right to rely on. In case of slightly negligent breach of fundamental contractual duties, however, our liability shall be limited to the extent of typical foreseeable damages.
c) This exclusion of liability shall not apply for claims referring to the Product Liability Act. In the event that we have given a guarantee, we shall be held liable within its scope. For damages resulting from the absence of the guaranteed condition of the product, but which do not directly affect the product, we shall only be held liable if the risk of such damages is clearly covered by the warranty. Furthermore, the exclusion of liability shall not apply for damages resulting from the injury of life, body or health.
d) Any liability for compensation for damages, irrespective of its legal nature, which is beyond those stated in sections a) to c) shall be excluded.
e) The aforementioned exclusions and limitations of liability shall apply to the same extent to our executives, legal representatives, employees and other vicarious agents.
§ 8 Compensation in case of Non-acceptance
In the event that you, as either an entrepreneur, a legal entity under public law or separate asset under public law as defined by the German Civil Code § 310, are in default of acceptance, we are entitled to demand a general compensation amounting to 15 % of the purchase order price without reduction. This shall also apply in case of our legitimate withdrawal from the contract, legitimate demand of advance payment or demand to provide collateral. We shall be at liberty to claim higher damages instead of this general compensation. In return, you shall be at liberty to explain and prove that no or a significantly lower damage has been caused.
§ 9 Ownership, Copyright
1. All operational items used by us to manufacture the contractual product, in particular films, lithographic prints, drafts, internegatives and final artworks shall remain our property and will not be delivered, even if they are charged separately.
2. In the event that, due to the execution of your order, any rights, in particular the copyrights of third parties, are violated, you shall solely be held liable for it. In this respect, you exempt us from any claims of third parties resulting from such a violation.
§ 10 Imprint
With your consent, we are entitled to refer to our company on the contractual product in a suitable manner. In the event of prevailing interest, you may refuse to give your consent.
§ 11 Final Provisions
If you are to be considered either a commercial business, a legal entity under public law or a separate asset under public law as defined by the German Civil Code § 310, the following terms apply:
- To the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG), the laws of the Federal Republic of Germany shall exclusively apply. This shall also apply for deliveries and services abroad.
- If you export our products to areas outside of the Federal Republic of Germany, we shall not be held liable for violations of third party property rights caused by this. You are obligated to reimburse for all damages resulting from the export of our products which we did not expressly deliver for export purposes.
- The exclusive contractual language is German. This shall also apply for all product descriptions, brochures, offers and order confirmations. The German original is the only legally-binding and applicable version; translations to other languages are all based on this original. We shall not be liable for misunderstandings resulting from any translations.
- If these aforementioned provisions should be partially void or fragmentary, this shall not affect the validity of the remaining provisions.
- The place of performance is our head office in 65549 Limburg and the exclusive court of jurisdiction is our registered office in 65549 Limburg. The same shall also apply if you do not have a place of general jurisdiction in Germany or if the permanent domicile or habitual residence is unknown at the time of filing action. In these cases, we are entitled to take legal action at your headquarters.