Art. 1: Definitions
Art. 2: General
Art. 3: Offers, quotations
Art. 4: Irrevocable Contract
Art. 5: Price
Art. 6: Payment term
Art. 7: Delivery method; reservation of ownership
Art. 8: Delivery time
Art. 9: Inspection upon delivery
Art. 10: Contents of and changes in contractsArt.
Art. 11: Typesetting proofs, printing proofs and other proofs
Art. 12: Deviations
Art. 13: Copyright, etc.
Art. 14: Ownership of means of production, etc.
Art. 15: Ownership of the principal; lien
Art. 16: Materials and products delivered by the principal
Art. 17: Force majeure
Art. 18: Liability
Art. 19: Governing law/Jurisdiction/Conflicting terms/Waiver of Jury Trial
Article 1: Definitions
The following definitions shall apply to the terms and conditions contained herein:
a. „Principal“ or “principal“: means the buyer who has given the supplier an order for the production of goods or the performance of Services by making payment on this website;
b. „Supplier“ or “supplier“ means the manufacturer/supplier who has accepted the order from the principal (buyer) referred to in a. above;
c. „data carriers“: magnetic tapes and discs, optical discs and any other materials that are meant for recording, processing, forwarding, transmitting, multiplying or publishing texts,
pictures or other data by means of equipment, all this in the widest sense of the word;
d. “Purchase Order” or “purchase order” means the electronic order that is placed by the proncipal at the point at which the principal has checked out from the shopping cart and has paid for the services on the website. Confirmtion of the purchase order on the website following checkout shall be conclusive proof that the principal has paid for the services.
e. „Services“ or “services”: means the work (products) and/or services to be performed by the supplier.
Article 2: General
The terms and conditions set forth herein shall be applicable to the formation and the contents of all contracts entered into between the principal and the supplier notwithstanding the existence of contrary terms and conditions that may be set forth in such contracts or purchase orders. Supplier may at any time revise the terms and conditions contained in these terms and conditions by updating this posting. Principal is bound by any such revisions and should periodically visit this page to review the current terms and conditions that apply.
The terms and conditions of the principal set forth in any contract or other document shall only be applicable if such terms and conditions have been expressly agreed in writing by principal and supplier that such terms and conditions shall be applicable to the contract between the principal and the supplier to the exclusion of all or some of the terms and conditions set forth herein. The invalidity of any term or condition stated in these terms and conditions will not affect the enforceability of the remaining terms or conditions as deemed to be enforceable by applicable law.
Article 3: Offers, quotations
1. The mere submission of a quotation, estimate, preproduction estimate or similar information, whether or not designated as an offer, shall not create an obligation on the part of the supplier to enter into a contract with the principal.
2. Any offer made by the supplier shall always be without engagement or obligation and can only be accepted without any changes or deviations. An offer shall in any case be deemed to have been rejected if it has not been accepted within thirty (30) days of the date of the offer. An offer shall be understood to mean a proposal made by the supplier to enter into a contract which is defined in such a manner as to result in a contract immediately upon acceptance of the proposal concerned.
Article 4: Irrevocable Contract
1. Upon the payment of the purchase order, the purchase order becomes irrevocable (that is, the purchase order cannot be withdrawn or reversed), and the parties are deemed to have entered into a contract for the services.
Article 5: Price
1. All prices stated shall be exclusive of all taxes and any other levies imposed by the government.
2. The prices stated by the supplier in respect of the services to be performed by the supplier shall solely apply to the services in conformity with the supplier’s specifications.
Article 6: Payment term
1. All payments made by the principal to the supplier are irrevocable and final. This means that all sales are final and there are absolutely no refunds.
Article 7: Delivery method; reservation of ownership
1. Unless otherwise agreed, delivery shall take place as agreed by the Principal and the Supplier. The supplier shall not be obliged to deliver the goods produced in installments.
2. The principal shall be obliged to fully cooperate in the delivery of the goods to be delivered by the supplier pursuant to the contract.
3. The principal shall, without notice of any kind, be in default if it fails to collect the goods to be supplied to his address, refuses to accept the goods to be delivered.
4. Each and every delivery of goods by the supplier to the principal shall take place while reserving to the supplier the ownership of these goods until such time as the principal has paid all amounts that it is obliged to pay pursuant to any contract, including interest and costs.
5. The transport of the goods to be delivered shall be at the Principal’s sole cost and expense, unless free delivery has been agreed upon by the parties hereto. The acceptance of goods from the supplier by the transport company shall be proof that these goods were in an externally proper state and condition, unless the contrary appears from the contract of carriage or the receipt.
6. The supplier shall not have to store the goods to be delivered, unless this has been explicitly agreed. If storage takes place, this shall be at the principal’s sole risk and expense.
Article 8: Delivery time
1. A delivery time stated by the supplier shall only be of an indicative nature unless it has been explicitly stated in writing that it concerns a latest delivery time. The supplier shall, even when a latest delivery time has been agreed, only be in default after written notice of default has been served on it by the principal.
2. The supplier shall no longer be bound by an agreed latest delivery time if the principal requires changes to be made in the specifications of the work or if he fails to comply with the stipulations of paragraph 1 of Article 12 of the within terms and conditions, unless the minor significance of the change or the minor delay does not reasonably necessitate the supplier to make any changes in its initially planned use of the production capacity in time.
3. Pending the full completion of the contract by the supplier, the principal shall be obliged to do all that is necessary or desirable in order to make a timely delivery by the supplier possible, in particular by immediately answering any questions the supplier may have, by observing the stipulations/provisions contained in paragraph 1 of Article 12 and paragraphs 1 and 2 of Article 18 of the within terms and conditions.
4. If the principal fails to comply with the stipulations/provisions of the previous paragraph, an agreed latest delivery time shall no longer be binding and the principal shall be in default without written notice of default by the supplier being required. Without prejudice to the rights due to it pursuant to the law, the supplier shall in such an event be entitled to suspend the performance of the contract until the principal has rectified this default. The supplier shall subsequently still perform the contract within a reasonable time.
Article 9: Inspection upon delivery
1. The principal shall be obliged to inspect, within five (5) business days of delivery, whether the supplier has performed the contract properly and shall furthermore be obliged to inform the supplier within seven (7) business days in writing if the contrary appears to the principal. Such writing shall set forth in detail the reason(s) constituting the principal’s objections.
2. The supplier shall always be entitled to replace an earlier improper services with new services, unless the default cannot be remedied.
3. The performance of the contract shall be considered to be a proper performance if the principal fails to carry out the inspection or to give notice as referred to in paragraph 1 of this Article within the time provided.
4. The supplier’s Services shall in any case be considered to be proper if the principal has put into use, processed, worked or delivered to third parties
the goods or part of the goods delivered or if the principal has caused same to be put into use, processed, worked or delivered to third parties, unless the principal has observed the stipulations/provisions contained in the first paragraph of this Article.
Article 10: Contents of and changes in contracts
The principal shall bear the risk of misunderstandings with regard to the contents and implementations of the contract if such misunderstandings are caused by the fact that the supplier failed to receive or failed to receive correct, timely or complete specifications or other communications that were made in writing, orally or by a person designated by the principal for that purpose or that were transmitted while using any technical/electronic means such as the telephone, fax,email and similar transmission media.
Article 11: Typesetting proofs, printing proofs and other proofs
1. The principal shall be obliged to carefully examine any typesetting proofs, printing proofs or other proofs received by it from the supplier for errors and mistakes, irrespective of the fact whether such proofs were received at the principal’s request, and to return such proofs to the supplier expeditiously after correction or approval.
2. The principal’s approval of the proofs shall be considered to constitute final and conclusive proof and recognition of the fact that the supplier has correctly carried out the work preceding the proofs.
3. The supplier shall not be liable for any deviations, errors and faults that remained unnoticed in the proofs that were approved or corrected by the principal.
4. Each proof produced at the principal’s request shall be charged in addition to the agreed price, unless it has been expressly agreed that the costs of such proofs are included in the price.
Article 12: Deviations
1. Deviations between, on the one hand, the work supplied and, on the other hand, the original design, drawing, copy, manuscript or model and the printing proofs, typesetting proofs or other proofs respectively, cannot constitute a ground for rejection, discount, the setting aside of the contract or damages, if such deviations are of minor importance.
2. In order to assess the question whether or not any deviations in the totality of the work are to be considered minor deviations, a representative sample will be taken from the work, unless it concerns individually determined items.
3. Deviations that do not reasonably have any influence or only a minor influence on the useful value of the work, taking all circumstances into account, shall always be deemed to be deviations of minor importance.
4. Deliveries in excess or short of the number agreed shall be allowed if such deliveries are not in excess or short of the following percentages:
– number of copies up to 20,000: 10%
– number of copies in excess of 20,000: 5%
However, with regard to excess or short deliveries of packaging printwork, labels and continuous forms a percentage of 10% shall always be allowed. The number delivered in excess or short of the agreed number shall be charged or deducted.
5. As regards the quality and weight of paper and cardboard, deviations of minor importance shall be considered to be the deviations allowed under the industry’s generally accepted and applicable deviation standards.
6. Deviations in the remaining materials and semi-manufactured products used by the supplier that are allowed under the general terms and conditions of sale applying to the delivery of such materials and semi manufactured products shall be considered as deviations of minor importance.
Article 13: Copyright, etc.
1. The principal represents and warrants to the supplier that the performance of the contract and in particular the reproduction or publication of materials received from the principal such as copy, manuscripts, type, models, drawings, photographs, lithographs, films, data carriers, computer software, data files etc. do not infringe any rights that third parties may enforce under any copyright or other intellectual property laws or other national, supranational or international laws and/or regulations in the area of copyright law, intellectual property law, industrial ownership law or the law of torts or contracts (collectively, “Intellectual Property Laws”). The principal shall indemnify, hold the supplier harmless and, if requetesed by the supplier, defend the supplier, both in law , equity and otherwise, against all claims that any third parties may have under any Intellectual Property Laws.
2. If any doubt arises or continues to exist as to the accuracy of the rights claimed by third parties as referred to in paragraph 1 of this Article, the supplier shall be entitled but not obliged to suspend the performance of the contract until such time as it has been irrevocably established in law that the supplier will not infringe such rights by performing the contract.
3. Unless it has been expressly agreed to the contrary in writing, the supplier shall always remain the party entitled to the copyright that may arise on the works produced by it in performing the contract, such as copy, manuscript, type, design drawings, models, working and detail drawings, data
carriers, computer software, data files, photographs, lithographs, films and similar means of production and aids, even if the activities concerned are stated as a separate item in the offer or on the invoice.
4. Neither the goods supplied or to be supplied by the supplier according to its own design, such as copy, manuscripts, type, design drawings, models, working and detail drawings, data carriers, computer software, data files, photographs, lithographs, films and similar means of production and aids nor any part thereof forming an essential part of such design may be reproduced within the scope of any production process without the supplier’s written consent, even if or to the extent that there is no copyright on or other statutory protection in respect of the design thereof for the supplier.
5. After delivery by the supplier, the principal shall obtain the non-exclusive right of use of the works within the meaning of the applicable Intellectual Property Laws or of the works within the meaning of paragraph 4 of this Article, produced by the supplier within the scope of the contract. Such right of use shall be restricted to the right to use the delivered goods in a normal manner and shall expressly not include the use for the reproduction of these works within the scope of any production process.
Article 14: Ownership of means of production, etc.
1. All things produced by the supplier such as means of production, semi-manufactured products and aids and in particular type, design drawings, models, working and detail drawings, data carriers, computer software, data files, photos, lithos, cliches, films, micro and macro mountings, printing plates, screen printing matrices, engraving cylinders, stereotypes, punching knifes and moulds, (foil) matrices,
embossing plates and peripheral equipment shall remain the property of the supplier, even if they have been stated as separate items on the quotation, in the offer or on the invoice.
2. The supplier shall not be obliged to hand over the things referred to in paragraph 1 of this Article to the principal.
3. The supplier shall not be obliged to keep the things referred to in paragraph 1 of this Article for the principal. If the supplier and the principal agree that such things will be kept by the supplier, this shall be for a period of one year at the most and without the supplier guaranteeing their suitability for repeated use.
Article 15: Ownership of the principal, lien
1. The supplier shall keep all property entrusted to it by the principal within the scope of the performance of the contract with the same care as the supplier would exercise with respect to its own property.
2. Notwithstanding the provisions of the previous paragraph of this Article, the principal shall bear all the risks connected with the property referred to in paragraph 1 during the keeping thereof. If insurance is desired, the principal shall obtain its own insurance coverage at it sole cost and expense to cover such risk(s).
3. The principal shall be obliged to ensure that before delivering copy, manuscripts, drawings, designs, photos or data carriers to the supplier, a duplicate is made thereof. The principal shall keep such duplicates in case the property supplied are lost by the supplier during the keeping thereof or have become unfit for use due to damage. In that case , the principal shall provide the supplier with a new copy at the supplier’s request.
4. The principal grants the supplier a lien on all property that are brought within the power of the supplier within the scope of the performance of the contract with the supplier, all this by way of extra security for all that the principal may owe to the supplier in whatever capacity or on whatever account, including non-exigible and contingent debts.
Article 16: Materials and products delivered by the principal
1. If the principal has agreed with the supplier to deliver materials or products for imprinting of processing purposes, the principal shall ensure that this delivery takes place in a manner that may be considered timely and proper for a normal, planned production. The principal shall ask the supplier for instructions in respect thereof.
2. In addition to the materials or products required for the Services, the principal shall be obliged to deliver a quantity for proofs, spoilage, etc. that may be deemed to be commercially reasonable for the processing work concerned. The principal shall ask the supplier’s specification in respect thereof. The principal shall see to it that the supplier receives a sufficient quantity. The supplier’s confirmation of receipt of the materials or products shall not imply acknowledgement that a sufficient quantity or the quantity stated on the documents relating to the carriage of the goods has been received.
3. The supplier shall not and is not obliged to examine the materials or products received from the principal on their suitability for printing or processing prior to such printing or processiand cannot ng.
4. The principal shall not and cannot hold the supplier liable for failure to perform the contract if such failure to perform is caused by extraordinary processing problems or processing problems that could not reasonably be foreseen by the supplier, and which are the result of the nature of the materials or products supplied by the principal. The principal shall not and cannot hold the supplier liable for failure to perform the contract either if this should be caused by deviations between the sample originally shown to the supplier and the materials or products subsequently delivered by the principal for the publication.
5. The supplier does not not guarantee characteristics, such as storage life, adherence, gloss, color, light or color fastness or wear-resistance if the principal has failed to give information as to the characteristics and nature of the materials and products supplied by it at the latest at the time of concluding the contract, and has failed to give sound information on the pretreatment and surface treatments applied.
6. Unless it has expressly been agreed to the contrary, the supplier shall not and cannot be held liable for the fact that the materials and products received by it from the principal and to be printed or processed by it have become unstuck, are sticking together, have become soiled, have changed in gloss or color or for any damage caused to such materials and products if these materials and products have been pretreated, inter alia, by the application of varnish, lacquer or anti-stain powder.
7. The principal shall be obliged to point out to the supplier in writing and in detail any special difficulties or health risks associated with the materials and products supplied by the principal that will be used during the printing or processing process.
8. The supplier shall be entitled to dispose of the left-overs of the materials and products supplied by the principal, such as offcuts, as if the supplier were the owner. The principal shall, at the supplier’s request, be obliged, at its sole cost and expense, to collect and remove any unused materials and products as well as the left-overs referred to above from the supplier.
Article 17: Force majeure
1. Failure in the performance of the contract on the part of the supplier shall not and cannot be imputed to the supplier if the supplier cannot be blamed for such a failure or if such a failure is not for supplier’s account under the law, the contract or otherwise.
2. Any failure on the part of the supplier in the performance of the contract which is the result of war, mobilization, riots, disturbances, flooding, blocked shipping, other blocking of transport, stagnation in or restriction or termination of supplies by public utility companies, shortage of gas, petroleum products or other means for the generation of energy, fire, breakdown of machinery and other accidents, strikes, lock-outs, actions by the trade unions, export restrictions, other government measures, non-delivery of necessary materials and semi-manufactured products, intent or gross negligence on the part of persons whose services are used and other similar circumstances shall be deemed to be circumstances which shall not and cannot be imputed to the supplier and shall not give the principal the right to set aside the contract or the right to damages.
Article 18: Liability
1. The supplier’s liability on account of the contract with the principal shall be limited solely to direct damages actually incurred by the principal and further limited to the amount that the supplier was actually paid under the contract. In no event shall the supplier be liable for punitive, special, exemplary or consequntial damages, including damages for loss of profits, loss of use of revenues or losses by reason of cost of capital, arising out of or relating to the contract regardless of whether a claim is based on contract, tort (including negligence including products liability), strict liability, violation of any applicable deceptive trade practices act or similair law or any other legal or equitable principle and the principal releases the supplier from liability for any such damages.
- The supplier shall not be liable for damage/loss of whatsoever nature arising from or subsequent upon the principal having taken into use, processed, worked or delivered to third parties the things produced or having caused same to be taken into use, processed, worked or delivered to third parties after the delivery thereof.
3. The supplier shall, furthermore, not be liable for damage in the form of loss of turnover or loss of goodwill in the business or profession of the principal.
4. The supplier shall, furthermore, not be liable for damage caused by principal’s use of the products or services outside of (or deviate from) (1) the supplier’s advertised use of the products or services and/or (2) the generally/commonly accepted intended use for the products or services.
5. If the supplier is held liable by a third party for any damage, for which he is not liable under the contract with the principal or the terms and conditions herein, the principal shall indemnify and hold the supplier fully harmless and reimburse the supplier in full for all that the supplier has to pay to such third party plus all expenses incured by the supplier, including, but not limited to attorneys’ fees.
Article 19: Governing law/Jurisdiction/Conflicting terms/Waiver of Jury Trial
The principal and the supplier expressly, unconditionally and irrovocably agree that (a) the terms and conditions herein and any contract entered into between the supplier and the principal shall be governed by the laws of the State of Delawarewithout regard to any conlict of laws principles; and (b) any suit or other action brought in connection with (i) the terms and conditions herein and any contract entered into between the principal and the supplier; or (ii) the relationship of the principal and the suppler, shall brought in the State Courts of the State of Delaware. The principal and the supplier also expressly agree that to the extent that the terms and conditions herein differ or conflict with any of the terms and conditions in any contract entered into by the principal and the supplier, the terms and conditions herein shall supercede and govern.
THE PRINCIPAL AND THE SUPPLIER EACH EXPESSLY, UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH RIGHT NOW OR HEREINAFTER EXIST WITH REGARD TO ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION WITH ANY CONTRACT BETWEEN THE PRINCIPAL AND THE SUPPLIER OR THE RELTIONSHIP BETWEEN THE PRINCIPAL AND THE SUPPLIER.