General Terms and Conditions (Ts & Cs) of Marienthaler Werbe-Offsetdruck GmbH & Co. KG
1. Scope of application
a) All of our deliveries/services to entrepreneurs (Section 14 German Civil Code), legal entities of public law or public-law special funds ("Purchasers") are based on the present terms and conditions. The terms and conditions shall specifically apply to contracts for the sale and/or delivery of movable goods ("Goods"), no matter if we produce the goods directly or purchase them from suppliers. Unless agreed otherwise, the terms and conditions shall apply as a master agreement to future contracts of the same kind with the purchaser as well, without requiring reference to them from case to case every time.
b) Deviating, contrary or supplementary general terms and conditions of the purchaser shall only apply if and as far as we have expressly recognized them. This also applies if we perform the delivery/service without reservation, knowing of the general terms and conditions of the purchaser.
c) Individual agreements with the purchaser take precedence over these terms and conditions. If such an agreement is put down in a written contract or has been confirmed by us in writing, the corresponding documents - subject to counter-evidence - are solely relevant for the content of those agreements.
2. Form of declarations
Reports of defects, stipulations of deadlines, rescission and reduction declarations of the purchaser shall require written form to be effective (Section 126 German Civil Code). Other reports and declarations of the purchaser can be made in text form (e.g. fax or email).
3. Conclusion of contract, product samples
a) Our offers are subject to confirmation and non-committal - if not agreed differently. Ordering of the goods by the purchaser shall be deemed a binding contractual offer that we accept with an order confirmation. The delivery certificate and goods invoice shall also be deemed an order confirmation.
b) Samples, drafts and sketches requested by the purchaser shall be invoiced by us as an independent order if the customer does not place a main order (serial production).
4. Print and punching templates, responsibility and release from liability for template contents, proofs
a) Printing plates, punching tools and other templates that we make on the purchaser's order will be charged by us at cost. They shall remain our property even after payment by the purchaser. We must not pass on/sell the templates to any third parties and must only use them to produce goods for the purchaser.
All copyright and commercial property rights in the graphical and lithographic work rendered by us for production of printing plates, punching tools and other templates shall be due to us.
b) If the purchaser provides printing plates or other templates to us, it shall be responsible for content accuracy (texts, colours, etc.) and for the templates not violating any third-party rights or legal provisions. In particular, the purchaser warrants that the texts, graphics and pictures in its templates do not infringe any personal rights, naming rights or copyrights of third parties and that it has the right to use (and potentially change) and pass on the templates and their components. The purchaser shall also indemnify us against any third-party demands and claims that are asserted against us due to infringement of third-party rights or violation of legal provisions for which it is at fault; the purchaser shall also be obligated to reimburse us for our legal expenses and other damage incurred in this context.
If we are forbidden from producing and delivering goods by a third party with reference to infringement of copyright or other rights or legal provisions, we shall have the right, to cease production and keep back goods already produced without entering default of delivery without any further review until the legal situation has been determined.
c) We have the right to refuse printing templates of the purchaser if their contents are racist, extremist, glorifying violence, discriminatory or derogatory. If it only becomes evident for us after conclusion of the contract, but before delivery of the goods, that a printing template has such a content, we shall have the right to withdraw from the affected part of the contract, subject to exclusion of damages claims on the side of the purchaser; the standard for recognisability shall be the assessments according to Section 377 German Commercial Code.
d) The purchaser must review proofs for errors and release them in text form towards us as ready for print. We shall not be obligated to start production before this. If the customer does not release them without undue delay, our delivery period shall extend accordingly. The purchaser's release shall exclude our liability for any errors and change requests that were not disclosed.
5. Delivery, delivery period, default
a) Deliveries shall be made ex stock, which shall also be the place of performance for the delivery and any subsequent performance. Upon the request and expenses of the purchaser, the goods shall be sent to a different destination (mail-order purchase). If not agreed on differently, we shall have the right to determine the type of dispatch (in particular transport companies, shipping method, packaging) on our own.
b) Partial deliveries shall be permitted as far as acceptance is reasonable for the customer under consideration of all circumstances.
c) Delivery periods are agreed separately. The day of delivery is the day of dispatch for shipping. If shipping is delayed without our fault, the day of provision of the goods shall be deemed the delivery day. If we are kept from timely delivery by labour dispute, interferences of our own operating process that could not be prevented in spite of reasonable care, interferences of the transport companies, interferences of the traffic routes, raw material deficits, authority actions or other events not due to our fault, the delivery period shall extend appropriately. An event not due to our fault shall also be late or non-delivery subject solely to our supplier's fault. In this case, we shall initially only be obligated to assign our reimbursement claims against our supplier to the purchaser. Only as far as the purchaser cannot hold himself harmless from the supplier, we assume subsidiary liability according to the proviso of these terms and conditions. The expiration periods shall not be extended in this respect.
In case of an event not due to our fault, we may withdraw from the contract, subject to exclusion of any further claims of the purchaser. If later the purchaser is not interested in later delivery/performance, he in turn may withdraw from the contract without any further claims.
d) We shall only enter default upon reminder in case of scheduled times as well. In case of delivery default, the purchaser may claim flat-rate damages for his default damage at 0.5% of the net price for the goods delivered delayed per completed calendar week of default, but at most 5% of the net price of the gods delivered delayed. If we are able to prove that the purchaser has incurred no or a much lower default damage, our reimbursement obligation shall be limited to the actual damage.
e) If the purchaser enters default of acceptance, does not perform any contribution action or if our delivery is delayed for any other reasons due to the purchaser's fault, we shall have the right to demand reimbursement for the resulting damage, including additional expenses (e.g. storage fees). We shall have the right to assert a flat-rate at 0.5% of the net price for the goods subject to default of acceptance for each full calendar week of default, but at most 10% of the net price of the goods affected by the default of acceptance, starting with the delivery period or - if there is none - starting at notification that the goods are ready for delivery, without this excluding any further claims. The purchaser shall have the right to prove that we have incurred no or a much lower damage than the demanded flat-rate. If we assert any claims beyond the flat-rate, the flat-rate shall be set off against the total damage.
6. Passing of risk
a) The risk of accidental destruction and accidental deterioration of the goods shall pass to the purchaser at handover. For a mail-order purchase, the risk of accidental destruction and accidental deterioration of the goods and the risk of delay shall pass already at delivery of the goods to the forwarder, carrier or other individual or legal entity charged with performing the shipment.
b) If shipping is delayed without our fault, the goods shall be stored at the purchaser's costs and risk; in this case, reporting of readiness for shipment shall be equivalent to dispatch. When taking back the goods, the purchaser shall bear the risk until receipt by us.
7. Prices, price increase, vouchers at international deliveries
a) Our prices shall apply, if nothing different is agreed from case to case, ex stock and plus VAT, packaging, transport, customs, import taxes and other public charges.
b) If there is a period of at least four weeks between placement of the order and the due date of the delivery at any time, and if the material costs increased by more than 5% during this period, we shall have the right to increase the price accordingly if we disclose the cost share in the total price with the price increase. The purchaser may withdraw from the contract within one calendar week after we have announced the price increase.
c) For international deliveries, the purchaser must submit the documents required for recognition of tax-freeness to use within two weeks of delivery of the goods (confirmation of delivery for EU countries or export certification for other countries). Otherwise, the purchaser is obligated to pay an amount corresponding to the VAT arising in Germany to us in addition to the respective invoiced amount.
8. Invoices, payment
a) We reserve the right to electronically send out invoices.
b) Our invoices shall be due to for payment at once. If receipt of the invoice is disputed, the purchaser shall enter into default without reminder at the latest 30 days after receipt of the goods.
c) At receipt of payment within 14 days from the date of the invoice, we grant a discount of 2%. Discount shall be granted for the respective strict value of the goods. Deduction of discount is not permitted while older invoices and claims remain unpaid. Payment default shall be subject to the statutory provisions.
d) The purchaser shall make payment in Euro at his expense to the bank account indicated by us. Bills of exchange and cheques shall only be accepted if this was expressly agreed beforehand. If this is the case, they shall only be accepted in lieu of performance and subject to discountability. Discount expenses and bill of exchange fees shall be at the purchaser's expense. The same shall apply to costs for collection and return transfers. In case of bills of exchange, deduction of discount shall not be possible; the remaining term must not exceed 60 days from the date of the invoice.
e) Payments by the purchaser shall first be set off against expenses, then against interest and last against the main claim; in case of several main claims, there will then be a set-off first against non-titled and then against the oldest claims.
f) Set-off and retention rights shall only be due to the purchase as far as these are based on defects of the goods delivered by us, are undisputed or have been finally determined.
g) If it becomes evident after conclusion of the contract, e.g. by insolvency application or considerable downgrading of creditworthiness, that our remuneration claim is endangered by the purchaser's lack of ability to perform, we shall have the right to demand advance payment and to declare all our claims due at once; the purchaser may demand performance step by step at the site of the goods.
9. Liability for defects
a) We shall not be liable for defects in used goods. At delivery of newly produced goods, we shall be liable for defects within one year after delivery of the goods, except if the law stipulates a longer expiration period mandatorily. Special provisions on expiration (e.g. Section 444 German Civil Code) shall not be affected.
The above expiration periods shall also apply to contractual and out-of-contract damages claims of the purchaser due to a defect of the goods, except if application of the regular statutory expiration (Sections 195, 199 German Civil Code) would lead to a shorter expiration from case to case. Damages claims of the purchaser due to wilful or grossly negligent violations of obligations, due to violations of life, body and health, and under the product liability act shall, however, expire only according to the statutory provisions.
b) The basis of our liability for defects shall be the agreements reached concerning the properties of the delivered goods. Provided templates, samples and drafts shall only found a property agreement if we have expressly confirmed this. As far as the property has not been agreed, the defectiveness of the goods must be determined according to the statutory provisions. We shall not assume any liability for any public statements of our suppliers and other third parties concerning the properties of the goods (e.g. advertising statements).
c) In case of colour reproductions, minor deviations from the original or between an initial print and the edition print, as well as possible colour abrasion, in particular at large colour areas, shall not be defects in any printing method. Common material-related fit fluctuations and colour deviations shall - also due to changes of temperature and moisture content - also not be any defects. Apart from this, claims from defects shall not apply in case of inessential deviations from the agreed properties or inessential impairment of usability that are common on the market/in the industry or due to production reasons.
d) Technically related additional or reduced volumes of up to ten percent shall be deemed agreed; the purchasing price owed by the purchaser shall be according to the actual volume delivered.
e) If any goods delivered by us are defective and if we do not have the right to refuse subsequent performance, we may, at our choice, render subsequent performance by removal of the defect (improvement) or by delivery of defect-free goods (replacement delivery). We shall have the right to make the owed subsequent performance dependent on it that the purchaser pay the due purchasing price, apart from an appropriate reduction at a ratio to the defect.
f) The purchaser shall only have claims from defects if and as far as he has examined the delivered goods without delay after receipt at the site of delivery, and reported any present defects in writing without delay; without delay shall be any report that is made within 10 calendar days of receipt of the goods (dispatched to us. For hidden defects, the complaint must be issued within 10 calendar days from discovery of the defect.
g) We shall bear or reimburse the expenses required for the purpose of subsequent performance (e.g. transport, travelling, labour and material costs) if there is an actual defect. Otherwise, we may demand reimbursement for the costs arising for us (in particular inspection and transport costs), except if the lack of defect was not recognisable for the purchaser.
10. Other liability
We exclude our liability and the liability of our bodies and statutory representatives for slightly negligent violation of obligations on the object/scope of delivery and other legal assets, as far as these do not affect any obligations essential for the contract, damage from the violation of life, body or health, or guarantees, or refer to any claims under the product liability act. This shall apply accordingly to any violations of obligations by our vicarious agents. The liability for violation of essential contractual obligations shall be limited to the foreseeable damage typical to the contract; this shall also apply in case of gross negligence, except if there is any violation of life, body or health. A change of the burden of evidence to the detriment of the purchaser is not connected to this. Damages claims under the product liability act shall not be affected by this.
The above shall apply to damages in addition to performance and to damages instead of performance, no matter the legal reason, in particular in connection with defects, consequential damage from defects, violation of obligations from the contractual relationship or tort, as well as when reimbursing expenses made in vain.
11. Reservation of title
a) The goods remain our property until complete payment.
b) If goods subject to reservation of title are processed into a new movable object by the purchaser, processing shall take place for us, without obligating us from it. The new object shall become our property. When connecting, blending or processing with any goods that do not belong to us, we acquire shared title in our reserved goods at the total value of the processed, blended or mixed objects. If the purchaser acquires sole title by blending, mixing or processing, he shall transfer shared title to us according to the ratio of the value of the reserved goods to the other goods at the time of blending, mixing or processing. In such cases, the purchaser shall keep the object that is his property or co-property that also is deemed reserved goods within the meaning of these provisions, free of charge.
c) The purchaser shall have the right to utilise or sell the reserved goods in the proper course of business. Any other disposals shall be forbidden to him.
The purchaser hereby assigns all claims arising for him from use of the reserved goods, including the VAT, to us in advance. If reserved goods are sold or used together with other objects or co-property shares that do not belong to us, the assignment shall only comprise the part of the claim that corresponds to the ratio of the delivery value of the reserved goods to the delivery value of the objects or co-property shares that do not belong to us. The purchaser's right to sell or process reserved goods in the proper course of business shall end by revocation by us due to sustainable deterioration of the purchaser's asset situation, but at the latest when he ceases payment. If the purchaser has sold the claim in the scope of real factoring, he assigns the claim against the factoring agency replacing it to the seller. The seller accepts this assignment.
d) The purchaser is entitled to collect the assigned claims while he meets his payment obligations. The direct debit authorisation shall expire when revoked by us, and otherwise at the latest at default of payment of the purchaser of more than one month or in case of essential deterioration of the asset situation. Our right to collect the assigned claims directly shall never be affected. We shall have the right to inform the purchaser's customers about the assignment and to demand payment to us before opening of insolvency proceedings concerning the purchaser's assets and while no orders from the insolvency court oppose this. Upon request, the purchaser is always obligated to provide us with a precise list of the claims due to us, including the names and address of his customers, the amount of the individual claims, the invoice date, etc., to us when demanded, and to provide us with all information required to assert the assigned claims and to permit verification of such information.
e) If the purchaser violates any obligations, e.g. by arrears of payment by more than one month ore cessation of payment, we shall have the right, without setting of a grace period, to take possession of the reserved goods, to satisfy ourselves freely from the reserved goods and to enter the purchaser's operating premises for this purpose as long as insolvency proceedings concerning the purchaser's assets have not been opened yet and orders of the insolvency court do not oppose this. The resulting expenses shall be borne by the purchaser. If we take back any goods due to the reservation of title, this shall only constitute withdrawal from the contract if we expressly declare this or if we dispose of the goods.
f) Seizure or transfers as collateral of the reserved goods or the claims assigned to us shall not be permitted. The purchaser shall report any third-party access to the reserved goods or the claims assigned to us (e.g. seizures or other third-party access) to us without delay. Costs for interventions against third-party access shall be assumed by the purchaser unless they are reimbursed by third parties.
g) The purchaser keeps the reserved goods for us without remuneration. He shall appropriately insure them against the common risks (fire, theft, water, etc.). The purchaser hereby assigns his compensation claims that arise he is due against insurance companies or other parties obligated to reimburse from damage of the above type to use at the amount of the value of the collateral. We accept this assignment.
12. Data protection
We will process any personal data disclosed to us within the scope of the contractual relationship according to the proviso of lit (b), sentence 1 of Article 6(1) of the regulation (EU) 2016/679 (General Data Protection Regulation), as far and as long as this is required to perform the contract. Processing of the disclosed personal data beyond this shall only take place as far and as long as a different legal basis is available for this.
13. Applicable law, contractual language, place of jurisdiction
a) The contractual relationship between the purchaser and us, including these terms and conditions, shall be subject to the law of the Federal Republic of Germany, subject to exclusion of international union law (in particular UN sales law).
b) The German version shall be relevant for the application and interpretation of a contract that is written in multiple languages in the absence of any agreement to the contrary.
c) The place of jurisdiction for any disputes from and in connection to the contractual relationship shall be the materially and locally competent court for our headquarters under commercial law, except if there is any arbitration agreement concerning the place of jurisdiction or a mandatory, predominant statutory provision. However, we shall have the right to raise a claim at the place of performance of the delivery obligation, a predominant individual agreement or at the general place of jurisdiction of the purchaser in deviation from this.
14 Partial invalidity
If individual provisions of these terms and conditions are or become invalid, the remaining provisions shall remain valid nevertheless. The contracting parties shall replace the in invalid provision by such agreement that comes as close as possible to the purpose of the invalid provision and that is legally permitted.
Status of the terms and conditions: June 2019