General terms and conditions
1.1 Our business relations regarding legal entities under public law and special funds under public law shall be governed by this GTC.
1.2 General Terms and Conditions of the customer other than the present shall not be accepted, even if we have not objected to these and accepts and performs the order.
1.3 These GTC shall apply for all future transactions of related kind between the parties.
„Text Form“ is a particular form of submitted statement. According to section 126b of the German Civil Code the term Text Form means that the readable declaration must be made in a manner suitable for its permanent reproduction and the person making the declaration must be named.
„Written Form“ is a particular form of submitted statement and means according to section 126 of the German Civil Code that the document must be signed by the issuer with his name in his own hand, or by hisnotarially certified initials.
„Entrepreneur“ means according to section 14 of the German Civil Code a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. A partnership with legal personality is a partnership that has the capacity to acquire rights and to incur liabilities.
1.5 Any references to statutory provisions are for the purposes of clarification only and do not limit their applicability, unless they are modified or expressly precluded in the GTC.
2. Offer and Contract Conclusion
2.1 Our offers shall not be binding and shall invite the customer to place a binding order. The contract shall only be concluded by means of our order confirmation, which shall be submitted within 14 days and shall be made separately in textual form or by fulfilling the order.
2.2 In the case that deviating from the foregoing section 2.1, the offer is expressly designated as binding or contains a certain time limit for the acceptance, the contract shall be concluded by means of the customer’s declaration of acceptance, which shall be made in textual form.
2.3 For proof purposes, any subsidiary agreements and changes to the content of the contract shall be made in writing. Our staff do not have any power of representation in order to make changes or to enter into subsidiary agreements to the present contract in a legally binding way. The persons who hold a comprehensive power of representation in accordance with statutory provisions, in particular managing directors and Prokuristen (cf. section 48 of the German Commercial Code [HGB]) shall be excluded from the provision in the foregoing sentence.
2.4 In principle, we shall send information and declarations to the email address indicated by the customer. The customer shall ensure that they regularly check their emails and configure the SPAM filters etc. in order to ensure that they take notice of our emails.
3. Subject Matter of the Contract
3.1 Product details (technical data, measurements, weights, tolerances, loading capacities, figures, etc.) and samples shall only serve for orientation purposes and shall represent approximated values unless the usability for the contractually agreed purpose does require their strict compliance. Without an express undertaking, they do not constitute a guaranteed condition of our goods.
3.2 Tolerances regarding the delivery quantities of papers and cardboards provided on roles or in certain formats, for each delivery: In principle, a total tolerance regarding the delivery quantities amounting to +/- 10 per cent between the ordered and the delivered quantity shall apply to each quantity unit and order item of all products.
3.3 Deviations from product descriptions and details shall be permitted as far as they are usual in commercial practice or they are made on the basis of statutory provisions or for making technical improvements. However, they must not impair the usability for the contractually agreed purpose.
3.4 For the order, the conclusion of the contract and processing the contract, only our own product descriptions shall be authoritative and not any possible customer-related attributes or designations of the order or the ordered purchase item.
4. Delivery Time
4.1 Indications of delivery times shall serve for orientation purposes only and shall only represent approximate values, unless they are agreed as expressly binding in textual form.
4.2 In the case that the parties agreed on shipment, the delivery periods and delivery dates shall refer to the time at which the goods are made available to our drivers or the forwarding agent, the carrier or other third parties to which the transport was assigned.
4.3 Our timely delivery shall require that the customer fulfils their obligations (such as the agreed down payment, providing information and records). The defence of the contract being unfulfilled shall remain reserved.
4.4 The period of performance shall be extended appropriately in the case that the delay is not attributable to us and the reasons for this were not foreseeable at the time of the conclusion of the contract, for example power outages, import difficulties, operational and traffic disruptions, strikes and lockouts, force majeure or delays on the part of our suppliers. We shall inform without delay about upcoming delivery delays. Provided that as a result of the delay, the acceptance of the delivery or service is unreasonable, the customer shall be entitled to rescind the contract by declaring this without delay in textual form. In the case of an impossibility of performance or if the performance is impaired not only temporarily, both parties to the contract shall be entitled to declare their rescission. In the case of a rescission, any possible counter-performance made by the customer shall be reimbursed.
5.1 Deliveries shall be made from the warehouse (EXW = Ex Works). At the customer's request and expense, the goods shall be sent to a different destination (so-called Versendungskauf, cf. Section 477 of the German Civil Code [BGB]).
5.2 The risk of the deterioration, destruction or loss shall pass when the goods are handed over to the forwarding agent, the carrier or other persons to which the transport was assigned. This shall also apply to partial deliveries and/or in the case that a freight-paid delivery was agreed upon and/or the goods are shipped by means of our own vehicles. In the case that the handing over for the shipment is delayed due to circumstances attributable to the customer, the risk shall pass at the time at which we announce that the goods are ready for shipment. We shall take out insurance regarding the shipment of the goods only against insurable risks and only at the customer’s request and expense.
5.3 We shall be entitled to make partial deliveries if those are usable for the customer within the scope of the intended contractual purpose, the delivery of the remaining ordered goods is ensured, and the customer does not incur thereby any considerable additional work or additional costs.
5.4 In the case of orders of goods to be delivered on demand, the customer shall take delivery within six months. After an appropriate grace period has expired without the desired result, we shall be entitled to rescind the contract.
5.5 In the case the delivery of the goods is postponed upon the customer's request or the customer is in default of taking delivery, we shall be entitled to request a monthly lump sum as storage compensation amounting to 0.5 per cent, but in total a maximum of 5 per cent of the invoice value of the delivery.
5.6 In the case that we are entitled to claim damages instead of the performance due to failures of the customer to comply with their duties, we shall be entitled to claim a lump sum compensation amounting to 25 per cent of the net order amount.
5.7 In the cases governed by sections 5.5 and 5.6 our right to claim other as well as higher damages shall remain reserved; the customer shall be entitled to prove that no or a lower damage has occurred.
6. Reservation of Title
6.1 Until all claims arising from the business relationship with the customer have been satisfied, we shall retain title to the delivered goods (hereinafter referred to as “goods that are subject to a reservation of title“). In the case there are several receivables or continuous accounting in an ongoing business relationship, the reservation of title shall also secure our balance claims even if invoices of individual deliveries are paid.
6.2 The customer shall store the goods that are subject to a reservation of title free of charge and applying the diligence of a prudent businessperson and shall insure them against theft, breakage, fire, water, and other damages. The parties have already agreed that all claims against the insurance company shall be assigned to us and we shall accept the assignment.
6.3 The customer shall revocably be entitled to process, remodel, and dispose of goods that are subject to a reservation of title in the ordinary course of business. However, pledges and transferences by way of security shall be prohibited.
6.4 The processing or remodelling shall be made on our behalf as manufacturers, with the result that we directly acquire the ownership, or the co-ownership in the case that materials of different owners are used in the processing or the value of the processed item is higher than the one of the goods that are subject to a reservation of title. The co-ownership shall be created at the proportion of the value of the goods that are subject to a reservation of title (gross invoice value) to the value of the other processed goods at the time of the processing. For the instance that this acquisition of ownership should not occur, the customer has already now agreed to transfer their future (co-)ownership in the newly created item at the aforementioned proportion.
6.5 For the instance that the items are inseparably mixed or combined with other items which then form a single item of which the customer’s item constitutes the main item, the customer has already agreed to transfer to us the co-ownership at the proportion of the value of the goods that are subject to a reservation of title to the value of the other items at the time they are mixed or combined.
6.6 The customer shall hereby assign to us by way of security the receivables from their customers arising from the resale. In the case of the destruction, loss, damage, or other impairments of the goods that are subject to a reservation of title or the new item, the customer shall hereby assign to us by way of security the claims against the insurance company or other third parties arising therefrom. In the case we only hold co-ownership, the assignment shall be made proportionately and corresponding to our ownership interest. We shall herebyaccept the assignment.
6.7 The customer shall be entitled revocably to collect the assigned receivables themselves. Payments made for the purpose of paying any debts shall be forwarded to us without delay until the secured debts are paid. The revocation may be made in the case there are legitimate interests, in particular in the case that payments are delayed or have been suspended, in the case of an insolvency application (which is not revoked within 10 days) or imminent insolvency. In the case of the revocation, the customer shall be obliged to submit to us the information and records required for collecting the receivables and to notify the customer of the assignment, in each case without delay.
6.8 If third parties should access the items, which are subject to our reservation of title, or the assigned receivables, the customer shall notify these third parties without delay of our ownership position or the fact that we hold the receivables, and shall notify us about that. The customer shall reimburse the costs that we incur in enforcing our rights in relation to the third party if the third party is unable to do so.
6.9 Upon the customer’s request, we will release at our discretion a corresponding part of the items regarding which we have reserved our title or of the assigned receivables, provided that the realisable value of all security interests amounts to more than 110 per cent of the value of all secured claims. This shall be assumed if the estimated value of the security interests exceeds 150 per cent of the value of the secured claims.
6.10 In the case the customer infringes their obligations, in particular in the case of delays in payments, suspensions of payments, insolvency applications, or the attempted enforcement against the customer without the desired result, we shall be entitled to request the return of the goods that are subject to a
reservation of title without the requirement of setting a time limit. The customer shall be obliged to return the goods that are subject to a reservation of title. The request of return or taking the possession in itself shall not constitute a rescission of the contract. The rescission of the contract shall be expressly declared.
7. Prices and Terms of Payment
7.1 Our prices shall be applicable ex works and shall include the loading but shall exclude any insurance, packaging, unloading, customs duties, and other public charges. In addition, the statutory turnover tax applicable at the invoice date shall be paid.
7.2 We shall be entitled to appropriately raise our prices at the earliest two months after the conclusion of the contract, if our suppliers raise their prices or if higher production expenses become necessary due to changes to laws that were unforeseeable when the contract was concluded. Upon request, we shall prove the reason for the price increase.
7.3 The invoice amounts without any deduction shall fall due immediately and shall be paid via bank transfer to our business accounts or via cheque, in each case free of charge for us. In the case of suspensions of payments, insolvency applications or the enforcement against the customer without the desired result, all payments of invoice amounts shall fall due immediately.
7.4 The invoices may also be submitted electronically by email, if the statutory requirements in that regard are observed.
8. Set-off, Right of Retention, Assignment
8.1 The customer shall be entitled to set-off or shall have rights of retention only if the counterclaim is undisputed or has become res judicata.
8.2 In warranty cases, the right of retention arising from section 9.6 sentence 5 of these GTC shall remain unaffected.
8.3 The assignment of claims arising from this contractual relationship shall require our previous consent.
9.1 The limitation period regarding claims arising from the defectiveness of the purchase item (Section 437, no. 1 and no. 3 of the German Civil Code [BGB]) shall be one year as from the delivery. Deviating from the foregoing provision, the statutory limitation periods shall apply to defects of the purchase item (Section 437, no. 3 of the German Civil Code [BGB]) in cases of intent and gross negligence or in the case of culpable infringements of life, body, or health and if we have fraudulently concealed a defect or have guaranteed the quality of an item. The special statutory provisions regarding third party restitution claims in rem (Section 438, subsection 1, no. 1 of the German Civil Code [BGB]), regarding buildings and building materials (Section 438, subsection 1, no. 2 of the German Civil Code [BGB]), regarding buildings or works the result of which consists in performing planning or supervision services for these (Section 634a, subsection 1, no. 2 of the German Civil Code [BGB]) as well a regarding the supplier’s recourse in cases of final deliveries of goods to consumers (Sections 478 and 479 of the German Civil Code [BGB]) shall also remain unaffected.
9.2 When stored properly, the hot stamping foil "Deco Stamp" shall have a processing stability during a period 6 months after production. We shall therefore not assume any warranty for defects which occur during the processing of this product after the expiration of the period indicated in the foregoing sentence.
9.3 The customer shall comply with their statutory inspection obligation and the statutory obligation to notify of defects in accordance with Sections 377 and 378 of the German Commercial Code [HGB].
9.4 In the case the goods do only insignificantly deviate from the agreed condition or the usability is impaired only insignificantly, any claims based on defects shall be excluded.
9.5 In the case of unjustified notifications of defects, we shall be entitled to claim from the customer to reimburse the expenses related to the examination of the defects.
9.6 In warranty cases, we shall remedy the defect (subsequent improvement) or make a substitute delivery at our discretion in the scope of a supplementary performance. We shall be granted an appropriate period for making the supplementary performance. In the case of substitute deliveries, the defective item shall be returned to us upon our request and in accordance with the statutory provisions. We shall be entitled to make the owed supplementary performance conditional on the payment of the due invoice corresponding to the delivery item. However, the customer shall have the right to withhold a share of the purchase price that is appropriate in relation to the defect.
9.7 The subsequent improvement shall not be deemed to have failed before the second unsuccessful attempt. In the case the subsequent performance has failed or an appropriate time limit to be set by the customer for the subsequent performance has expired without the desired result or is dispensable in accordance with the statutory provisions, the customer shall be entitled to reduce the purchase price or rescind the contract at their discretion.
9.8 The statutory provisions regarding the supplier’s recourse in cases of final deliveries to consumers (Sections 478, 479 of the German Civil Code [BGB]) shall also remain unaffected.
10.1 WE SHALL, REGARDLESS OF THE LEGAL REASON, BE FULLY LIABLE FOR DAMAGES DUE TO INTENTION OR GROSS NEGLIGENCE AND DUE TO INTENTIONAL OR NEGLIGENT PERSONAL INJURY. WE SHALL ALSO BE FULLY LIABLE IF IT HAS FRAUDULENTLY CONCEALED A DEFECT OR GAVE A GUARANTEE OF THE QUALITY OF THE PRODUCT (WITHIN THE MEANING OF SECTION 444 OF THE GERMAN CIVIL CODE).
10.2 WE SHALL FURTHERMORE, REGARDLESS OF THE LEGAL REASON, BE LIABLE FOR DAMAGES DUE TO GROSS OR NEGLIGENT VIOLATION OF SIGNIFICANT CONTRACTUAL OBLIGATIONS WHICH ARE CRUCIAL FOR THE PROPER IMPLEMENTATION OF THE CONTRACT AND TO ACHIEVE THE CONTRACTUAL PURPOSE (SO-CALLED „CARDINAL OBLIGATIONS“). IN CASE OF NEGLIGENCE, THE AMOUNT AND EXTENT OF LIABILITY IS RESTRICTED TO.
10.3 THE AFOREMENTIONED LIABILITY RESTRICTIONS SHALL ALSO APPLY FOR THE BENEFIT OF EMPLOYEES, STAFF, ASSISTANTS, LEGAL REPRESENTATIVES OR VICARIOUS AGENTS.
10.4 LIABILITY ACCORDING TO GERMAN PRODUCT LIABILITY ACT REMAINS UNAFFECTED.
10.5 ANY FURTHER LIABILITY SHALL BE EXCLUDED.
11. Intellectual Property Rights
11.1 All Intellectual Property Rights of our products are reserved by us.
11.2 We reserves the copyright and property right of offers, images, drawings, models, catalogues, brochures and other documents that were provided to the Contracting Partner during contractual initiation and implementation. The aforementioned material is not to be copied, published or made accessible to third parties without our agreement. On our request these documents shall be returned and copies be destroyed immediately, if they are not required in the orderly course of business or if negotiations do not lead to contract conclusion.
12. Confidentiality Clause
The Customer shall keep confidential and not disclose to any third party the contents of contract and any business and trade secrets and other confidential information disclosed to him, except as expressly agreed upon with the other party.
13. Final Provisions
13.1 The contract is subject to the law of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods, dated 11 April 1980 (CISG).
13.2 The place of performance under this Agreement shall be the place where we have our registered company seat.
13.3 Our registered company seat shall be the place of jurisdiction in respect of all disputes arising out of or in connection with the contractual relationship with the costumer as merchant (“Kaufmann” as defined by section 1 of the German Commercial Code [HGB]), legal entity of public law or of special fund under public law. We may, however, to its own choice take legal action at any other legal place of jurisdiction. Mandatory statutory provisions concerning exclusive place of jurisdiction remain unaffected.
13.4 The contract language is German. If multilingual versions are available, the foreign language version serves for information only. In the event of any inconsistency between the German and the foreign language versions, the German version shall apply.
Information on Data Processing
1. The personal data submitted to us will be collected, stored, and – if applicable and as far as required – passed on to third parties (such as the commissioned transport company and financial institution). We shall also be entitled to pass information on, if we are obliged to do so due to the requirement of a government institution within the scope of imperative national legal provisions or on the basis of a judicial decision or ifpassing on the information serves for enforcing our rights in cases of data abuse and asserting claims.
2. We shall store the data until the retention periods under tax and commercial law have expired.
3. The customer shall have the right to information about stored personal data, its collection, processing or utilisation free of charge, as well as – if applicable – a right to the correction, blocking, or deletion of this data.
Decor Druck Leipzig 2016