In business dealings with enterprises (§ 14, German Civil Code), public law legal entities or public law special funds, our deliveries and services shall exclusively be rendered on the basis of the following terms and conditions of business. They shall be deemed accepted by Client as from placement of the order, at the latest upon acceptance of the delivery. Deviating terms and conditions of business of Client shall be of no obligation for Supplier, even if Supplier has failed to contradict them expressly. Supplier is the firm of GLOBAL BRAND CONCEPTS GmbH.
§ 1 Quotations and prices
(1) Quotations and prices of Supplier shall be deemed subject to change without notice and noncommittal in all parts to the extent that this has not been stated to the contrary. A contract with Client shall only originate when its order has been confirmed either in a text form (§ 126 b, German Civil Code) or in an electronic form (§ 126 a, German Civil Code) or is finally accepted by notification or dispatch or production of an invoice.
(2) The agreed prices shall be understood customs paid from German seaport or delivery warehouse, including outer packaging and plus statutory Value Added Tax applicable at the time. Additional deliveries and services shall be charged separately.
(3) Supplier reserves the right to change its prices accordingly if cost reductions or cost increases, in particular on the basis of wage agreements or changes in material prices, occur following conclusion of the agreement. Supplier shall prove them to Client upon request.
§ 2 Technical data and copies
Print/finish copies presented by Supplier shall be examined by Client, also with regard to all the properties essential and demanded for the intended use of the goods. Client shall return the documents countersigned as proof of its agreement. To the extent that corrections are necessary, they must be marked clearly.
Supplier shall not warrant for recognisable defects which Client has overseen or not notified in the examination, unless Supplier has deceitfully failed to notify these defects.
§ 3 Quantity tolerances
Supplier shall be entitled to make surplus or short deliveries up to 10% of the amount ordered (on the basis of either weight or quantity) due to production.
§ 4 Delivery and service periods
(1) Delivery periods stated shall be deemed agreed approximately insofar as they are not expressly confirmed as being binding on the part of Supplier. An agreed delivery period shall be complied with if the object of delivery has left the factory or readiness for dispatch has been notified before its expiry. If, after confirmation of the order, Client requests amendments of the order influencing the duration of the implementation, the delivery period shall be extended accordingly. In the event of a disturbance of operation caused by a lockout or a strike with Supplier or with a downstream supplier and also in other cases of force majeure, an agreed delivery period shall be extended by the duration of the delay induced thereby.
(2) For the duration of the examination of proofs, finished samples, clichés etc. by Client, the delivery period shall be deemed interrupted, viz. from the date of the dispatch to Client to the day of the receipt of its comments by Supplier.
(3) If Client falls into arrears of acceptance or culpably breaches other duties to involvement, Supplier shall be entitled to demand reimbursement of the damage incurred to this extent, including all and any additional expenditure. The right to further claims shall be reserved.
(4) Insofar as the preconditions of subsection 3 have been fulfilled, the risk of chance destruction or chance deterioration of the object of purchase shall pass to Client at the time at which the latter has fallen into arrears of acceptance or debtor’s delay.
(5) Supplier shall be liable according to statutory provisions to the extent that the underlying purchase contract is a fixed transaction within the meaning of § 286 II, no. 4, German Civil Code, or of § 376, German Commercial Code. Supplier shall also be liable according to statutory provisions to the extent that Client is entitled to claim that its interest in further performance of the contract has been forfeited as a result of arrears in delivery for which Supplier is answerable.
(6) Supplier shall further be liable according to statutory provisions to the extent that the arrears in delivery are based on breach of contract by malice aforethought or gross negligence for which it is answerable. Culpability of the representatives or vicarious agents of Supplier shall be ascribed to Supplier.
Insofar as the arrears in delivery are not based on a breach of contract by malice aforethought to be ascribed to Supplier, Supplier’s liability for damages shall be limited to the foreseeable damages typically occurring.
(7) Supplier shall also be liable according to statutory provisions to the extent that the arrears in delivery for which it is answerable are based on a culpable breach of an essential contractual duty, although in such a case the liability for damages shall be limited to the foreseeable damages typically occurring.
(8) Apart from this, Supplier shall be liable in the event of arrears in delivery for each completed week of arrears with a lump sum reimbursement for arrears to the amount of 3% of the value of the delivery, albeit no more than 15% of the value of the delivery all told.
(9) The right to further claims and rights of Client shall be reserved.
§ 5 Invoice and payment
(1) Invoicing shall be done as per the date of dispatch of the goods. The payment periods shall commence from the date of the invoice. This shall apply for both the main invoices and also for part and subsequent invoices.
(2) Payment shall be within 30 days of the date of the invoice without deduction or with deduction of 2% discount within 8 days. The receipt of the payment by Supplier shall be decisive for Client’s entitlement to discount.
(3) Postage and freight costs as well as job payments shall be due for payment immediately without deduction. In the event of payment after maturity, interest and expenses to the amount of the rates demanded by big banks for the granting of loans shall be charged.
(4) Offsetting with Customer‘s counterclaims shall be ruled out for all imaginable cases, unless the counterclaims are undisputed or legally effective.
(5) Supplier shall be entitled to assign its claims from deliveries and services for purposes of financing.
(6) If Customer falls into arrears with a payment, all other claims shall become due for payment immediately without specific notice of default being necessary.
(7) For deliveries and services to customers abroad, it shall be deemed expressly agreed that all the costs of legal prosecution by Supplier in the event of arrears by Customer, both judicial and also extrajudicial, shall be charged to Customer.
§ 6 Obligation to examination and notification of defects
(1) The commodities provided by Supplier shall be examined by Client with the due care of a prudent businessman immediately after arrival at the destination. The examination shall extend to all the properties essential and demanded for the use of the goods. Client’s duty to examine the commodities supplied shall also exist if type samples have been dispatched. Client shall notify Supplier of defects established without delay, albeit within a preclusive period of one week. If Client fails to make the notification, the goods shall be deemed accepted, unless it is a question of a hidden defect not recognisable even in the event of careful examination. If such a defect is seen later, the notification must be made immediately after discovery, albeit within a preclusive period of 3 months after delivery.
Otherwise, the commodities shall be deemed accepted despite this defect. Defects in a part of the delivery cannot lead to a notification of defects of the entire delivery to the extent that a separation between faultless and faulty part can be reasonably expected with suitable means. Warranty of Supplier for the fact that the delivered commodities (including the packaging used) is suitable for the purpose intended by Client shall not exist to the extent that such a purpose of use was not expressly the object of the order placed.
(2) Tolerances in colour, quality, material, weight and other finishes customary in the trade and technically unavoidable shall not be a cause for complaints on the part of Client. This shall also apply for deviations in colour between the pattern and reproductions, likewise for a comparison between any proofs and the final print.
§ 7 Warranty and damages
1) The period of barring by limitation for claims on account of defects shall be 1 year from delivery of the commodities.
(2) In the event of substantiated and punctual notification (cf. § 6, subsection 1), supplier shall warrant by subsequent performance, excluding further claims (at Client’s option either by after working or replacement delivery of commodities free of defects). This shall only apply to the extent that Supplier is in a position to do so on the basis of its production capacity or that of its suppliers and to the extent that subsequent performance is not connected with disproportionate costs.
If Supplier is not in a position to perform subsequently within a suitable period or if Supplier has to reject subsequent performance due to disproportionate costs, this shall be notified to Client without delay. In such a case or in the event of failure of subsequent performance, the rights determined in § 437, nos. 2 and 3, German Civil Code (reduction of remuneration, damages, withdrawal) shall accrue to Client – if the statutory prerequisites have been fulfilled apart from this – in lieu of subsequent delivery. Withdrawal shall be ruled out if the defect is only proportionately slight. If Client decides to withdraw from the contract, no further claim to damages shall accrue to it on account on the defect. If Client demands damages for the commodities delivered on account of a defect, the commodities shall remain with it to the extent to be reasonably expected in the individual case, the claim to damages in any case being limited to the difference between the agreed purchase price and the value of the defective object. Supplier shall only be liable for damages – regardless of the legal reason and notwithstanding the statutory distribution of the onus of proof of § 280 I, German Civil Code, for the obligation to represent a breach of a duty – in the event of malice aforethought or gross negligence, with the exception of damage based on a breach of a cardinal contractual duty, deceitful failure to notify a defect or failure to comply with an assured property. In the event of simple negligence, liability of Supplier shall be limited in such cases to the damage foreseeable at the conclusion of the contract and typically occurring. The aforementioned limitations of liability shall not apply for claims to damage from injury to life, limb or health or from mandatory statutory provisions, in particular the Product Liability Act.
§ 8 Copyrights
(1) Client shall be responsible for examining the right of reproduction and copyright, of trademark rights, all and any patent or utility patent protection in existence as well as other third party rights with regard to all print copies, drafts and finished patterns, unless it has expressly given Supplier an order in this regard. Notwithstanding this, Supplier shall notify Client of all and any contradictory third party rights known to it.
(2) In the event of a breach of a right as stated in subsection 1 above, Client shall hold Supplier harmless against all and any claims of third parties on account of such a breach of a right.
§ 9 Dispatch, packaging and passage of risk
Dispatch shall be at Client’s risk and also, if not agreed to the contrary, for its account. Risk shall pass to Client with the handover of the commodities to the haulage con-tractor or forwarder, even if part deliveries are made or Supplier has also taken on other performances, e.g. dispatch costs or transport and unloading.
§ 10 Retention of title
(1) Supplier reserves the right to ownership of the object of purchase until receipt of all payments from the business relationship with Client. In the event of conduct of Client in breach of contract, in particular in arrears in payment, Supplier shall be entitled to take the object of purchase back. Taking back the object of purchase by Supplier shall substantiate a withdrawal from the contract. After taking the object of purchase back, Supplier shall be entitled to exploit it, the exploitation revenue being offset against Client’s liabilities – less suitable costs of exploitation.
(2) Client shall be obliged to treat the object of purchase carefully, in particular being obliged to insure it adequately at its own expense against fire, water and theft damage at the new value. Insofar as maintenance and inspection work is necessary, Client must carry it out at its own expense and in good time.
(3) In the event of seizures or other interventions by third parties, Client shall notify Supplier without delay so that proceedings can be initiated pursuant to § 771, Code of Civil Proceedings, if need be. Insofar as the third party is not in a position to reimburse Supplier for the judicial and extrajudicial costs of initiating proceedings pursuant to § 771, Code of Civil Proceedings, Client shall be liable for the losses incurred by Supplier.
(4) Client shall be entitled to resell the object of purchase in the customary course of business, albeit here and now assigning all claims to the final amount of the invoice (including Value Added tax) of Supplier’s claims accruing to it against its customers or third parties from the re-sale to Supplier, regardless of whether the object of purchase has been resold without or following processing. Client shall remain entitled to collect said claim even after assignment.
Supplier’s power to collect the claim itself shall re-main unaffected. However, Supplier engages not to collect the claim as long as Client complies with its obligations to payment from the revenue achieved, does not fall into arrears in payment and in particular no application for opening of settlement or insolvency proceedings has been made or payments have been stopped. However, if this is the case, Supplier can demand that Client notify it of the claims assigned and their debtors, give it all the information necessary for collection, hand over the applicable documents and notify the debtors (third parties) of the assignment.
(5) Processing or reforming of the object of purchase by Client shall always be done on Supplier’s behalf. If the object of purchase is processed with other objects not belonging to Supplier, Supplier shall acquire co ownership of the new object in the ratio of the value of the object of purchase (final invoice amount, including Value Added Tax) to the other processed objects at the time of the processing. Apart from this, the same shall apply for the object originating through processing as for the conditional commodities.
(6) If the object of purchase is inseparably combined with other objects not belonging to Supplier, Supplier shall acquire co ownership of the new object in the ratio of the value of the object of purchase (final invoice amount, including Value Added Tax) to the other processed objects at the time of the combining. If the combining is done in such a way that Client’s object is to be regarded as the main object, it shall be deemed agreed that Client shall transfer ownership to Supplier pro rata. Client shall keep the sole property or co property originating in this way on Supplier’s behalf.
(7) Supplier engages to release the securities accruing to it at Client’s request insofar as the realisable value of Supplier’s securities exceeds the demands to be secured by more than 10%; the selection of the securities to be released shall be a matter for Supplier.
§ 11 EAN Code
The printing of EAN barcodes shall be done according to the state of the art and taking the relevant implementation regulation of the CCG into account. Furtherreaching assurances – in particular statements on reading results at cash desks in the trade – cannot be given on account of possible negative influences on the barcodes following passage of risk and due to a lack of standardised measurement and reading technique.
§ 12 Place of jurisdiction, applicable law and partial nullity
Place of performance and place of jurisdiction for both parties for all disputes arising shall be Supplier‘s registered office. However, Supplier shall be entitled to sue at Contracting Party‘s place of jurisdiction. The law of the Federal Republic of Germany shall apply exclusively, validity of UN purchasing law being ruled out. In the event of the infectivity of individual aforementioned contractual terms, the remaining terms and conditions shall remain binding.