General Terms and Conditions dated 01.01.2013 - hofmann druck nürnberg GmbH & Co KG

All agreements and offers are subject to the contractor's terms and conditions. They are acknowledged through the placement of an order or the acceptance of the delivery, and they shall remain valid for all future business relations, even if there is no repeat explicit reference to them. Unless expressly acknowledged in writing by the contractor, the customer's alternative conditions shall not be binding for the contractor, including in the event that it does not expressly repudiate them.

 

1. Quotation

The prices specified in the contractor's quotation apply, subject to there being no amendments to the order data upon which the quotation in question is based. Quotations are issued in euros, and, unless otherwise specified, these prices do not include value-added tax and are valid ex works. They do not include packaging, shipping, insurance and other costs of consignment. The customer shall be charged in respect of subsequent changes requested by the customer, including any machine downtime caused thereby. Subsequent changes are deemed to include the repetition of sample proofs requested by the customer due to minor deviations from the master.

 

2. Payment conditions

The invoice (net price plus value-added tax) shall be issued on the date of the dispatch of the goods or the part delivery. If, following completion or upon a duty of acceptance becoming established, the customer has not provided any shipping instructions or if the goods are put into storage by the contractor, the invoice will be issued to the date the production of the goods was completed.

Payment periods commence with the invoice date. The invoice total (net price plus value-added tax) is payable in euros, without deduction within 30 days of the invoice date. An early payment discount of 2% will be granted on payments made within 8 days following the invoice date. Cash-on-delivery shall be deemed customary for smaller amounts. The contractor reserves the right to demand advance payment or part payments in respect of the work performed. In the event that the contractor supplies larger quantities of paper, card or other special material, it shall be entitled to demand immediate payment in respect thereof. Irrespective of its own claims and the legal basis upon which these may be based, the customer shall have no right to offset or right of retention, unless its counter-claim is not in dispute or has been confirmed by way of a res judicata (final court) decision. The assertion of the right of retention is conditional, moreover, on the counter-claim having been established upon the same legal relationship.

In the case of bank transfers and cheques, the payment shall be deemed received on the day that the contractor receives the credit advice. If a subsequent, material deterioration becomes known in the financial circumstances of the customer, and this puts the contractor's claims to payment at risk, the contractor shall have the right to demand advance payments, withhold delivery of the goods, or cease further work on current orders. The contractor shall have the same right if the customer is in default of making payments under this business relationship. The contractor has the right to assign to third parties its claims against the customer. If the customer is in default of payment in relation to a receivable, the contractor may also demand that the customer settle all current debts against the contractor, including those not yet due. Payments must be made net to the supplier's point of payment. The customer shall bear all charges, costs and expenses, incurred in connection with any successful legal actions pursued against it outside of Germany.

 

3. Retention of title

The delivered goods shall remain the property of the contractor, until the settlement of all receivables (including current account balances) to which the contractor is entitled against the customer, both now or in the future. The retention of title shall be conclusively extinguished at the time of the payment of all receivables still outstanding. Prior to the time of full payment or the redemption of bill of exchange or cheques issued for this purpose, the goods may not be pledge or assigned as security without the consent of the contractor.

The customer is entitled to rework and sell the goods subject to retention of title as part of its normal business dealings, provided it is not in default or the contractor has not objected to the resale or reworking. By way of precaution, the Customer here and now fully assigns to the Contractor the receivables established (including the settlement of all outstanding current account balances) due to the resale or other such legal basis (insurance, tort) concerning the goods subject to retention of title. The contractor empowers the customer to collect the assigned receivables for its own account and in its own name; this authorisation may be revoked at any time. Upon the request of the contractor, the customer shall disclose the assignment and provide all relevant parties with the information and documentation necessary in this connection. If the realisable value of the goods subject to retention of title exceeds the secured claims by more than 110%, the contractor undertakes, upon demand by the customer, to release the securities to which it is entitled to this extent. The threshold for the establishment of such a claim to release is 150% of the estimated value of the secured goods.

Any processing or transformation of the goods subject to retention of title shall always be performed on behalf of the Contractor as the manufacturer, but without creating any obligation on its part.

 

4. Deliveries

Unless otherwise agreed, deliveries are deemed made ex supplier's works. Delivery is made at the cost and risk of the Customer. Unless the customer has issued special instructions, the contractor is not liable to ensure delivery is made by the most cost-effective or quickest route. The contractor or the freight contractor shall only arrange transport insurance at the express instruction and cost of the customer.

 

5. Delivery period

If no delivery date has been agreed, but a delivery time has been agreed based according to a time period, this shall commence with the day of the dispatch of the order confirmation, and it shall end upon the day that the goods depart the supplier's works or are put into storage due to impossibility of consignment. The delivery time shall be suspended for the duration of the inspection by the customer of the press proofs, production samples, films; said suspension shall commence on the day the materials are sent to the customer and shall end on the day it issues its response. If the customer requests changes to the order following the order confirmation, and these impact on the production time period, this shall entail the commencement of a new delivery time, which will begin once the changes have been confirmed. The contractor shall not be liable for the impossibility of the delivery or the overrun of the delivery time, if this is caused by mobilisation, war, strike, lock-out, civil unrest, transport breakdowns or the occurrence of unforeseeable impediments. The customer shall not be entitled to rescind the agreement if this only entails a short-term overrun to the delivery time and an insignificant price increase.

 

6. Procurement risk

Delivery dates and periods are conditional on the contractor receiving correct and scheduled deliveries from its sub-suppliers. The contractor accepts no liability or risk whatsoever for the quality of the materials or ingredients needed for the production of the goods. It shall only be liable in accordance with Art. 9 in this respect.

 

7. Delay to delivery and delivery default

In the event of delays to the contractor's delivery, the customer may cancel the agreement following the fruitless expiry of a reasonable grace period or if the granting of such a time period may be dispensed with in accordance with the law. Otherwise, the contractor is liable for delays to delivery only in accordance with the provisions of Art. 9.

 

8. Objections

Objections concerning obvious defects must be raised in writing without delay. The customer remains obliged to inspect the delivered goods in the case of reference samples. Defects in a part of the delivery may only result in an objection to the entire delivery, if the delivery as whole is significantly impaired due to the defect.

The contractor must either eliminate the defect or deliver a fault-free article, the choice resting with it. The customer may rescind the agreement or reduce the purchase price in the event that the fault elimination proves unsuccessful. The subsequent improvement shall be deemed to have failed following the second unsuccessful attempt, unless the particular type of object or defect or particular circumstances determines otherwise. Otherwise, the contractor is liable only in accordance with the provisions of Art. 9.

Customary, batch-related variances in paper, colour or ink are not a justifiable reason for complaint.
No complaints may be raised in respect of variances in the quality of the paper, car and other such material supplied by the customer, insofar as these are declared to be permissible in the delivery conditions of the paper and cardboard industry or another applicable supply industry - to be provided to the customer upon request. The same is true for variances caused by differences unavoidable in the printing industry between the proof phase and the final print run. Minor deviations from the original are not deemed to be a justified reason for a complaint in the case of colour reproductions whatever the printing process. In the case of certain customised services, such as special covers made of synthetic material, special bindings including spiral binding, cellophaning, paintwork, gumming or impregnation etc., performed by a third-party company, the terms of delivery of the supplier in question shall apply; these can be made available to the customer upon request.

 

9. Liability

9.1. The contractor shall only be unreservedly liable in cases of deliberate acts or gross negligence, for causing death or personal injury or in accordance with the German Product Liability Act.

9.2. In all other cases, the contractor shall be liable to pay compensation, irrespective of the legal basis, only for the breach of fundamental contractual obligations. Fundamental obligations are those duties, the fulfilment of which is imperative to enable the very performance of the agreement and upon the fulfilment of which the customer could normally expect to rely upon. However, in the aforementioned cases the contractor shall only be liable for foreseeable damages typical for this type of contract. In such cases, the contractor shall not be liable, moreover, for damage caused by the delivered goods to other legally protected interests belonging to the customer, meaning damage to other property. Liability is excluded, moreover, in respect of ordinary or average negligence.

9.3. The following disclaimers shall not apply in the case of Art. 9.1.
• The risk of any defects passes to the customer upon the issue of the imprimatur (print approval, Art. 17) , provided this does not concern defects, which, following the imprimatur, only occur during the subsequent production process or only become identifiable at that time. The same applies to all other approvals issued by the customer.
The contractor shall not be liable for the loss of files provided to it by the customer. The customer is duty bound to prepare and retain its own backup copies.


9.4. The limitation on liability contained in Art. 9.1 – 9.3. also applies to any claim for the compensation of futile expenditure, as well for the actions of the contractor's vicarious agents and sub-contractors, the administrative bodies or other such representatives.

 

10. Limitation period

10.1. There is a limitation period of 1 year on compensation claims – irrespective of the legal basis – or any other such claims or rights established in relation to defects.


10.2. The limitation period pursuant to Art. 10.1. also applies to all other compensation claims against the contractor. It also applies where claims are not connected with a defect.

10.3. In the cases of Art. 10.1. and Art. 10.2., the limitation period shall commence with the outward delivery.


10.4. The foregoing limitation periods do not generally apply to intentional acts. Nor do they apply in the event that the contractor has deceitfully concealed a defect, or if it has given a quality guarantee. The limitation periods on compensation claims likewise do not apply to cases of death or personal injury, or loss of freedom, or to claims made in accordance with the German Product Liability Act, or to a grossly negligent breach of duty or the culpable breach of fundamental contractual obligations (for a definition, see Art. 9.2.).


10.5. All other claims of the customer shall be extinguished within one year. The commencement of this limitation period is based on the legal regulations.

 

11. Material to be provided by the customer must be delivered to the contractor carriage paid. Receipt shall be confirmed, but without any acceptance of liability for the accuracy of the quantities indicated as delivered. Alongside the storage costs, the expenses entailed in the counting or weight inspection of large batches of delivered items shall be reimbursable. In the event that the customer provides the paper and card, the contractor shall retain the ownership of the packaging material and wastage through the unavoidable losses caused by printing processes and the printing run, trimming and punching operations. In the event that the customer provides the contractor with all types of printing plates, the work needed to produce the printing blocks will be invoiced.

 

12. Packaging will be charged at its primary cost, plus value-added tax; packaging is non-returnable.

 

13. The contractor shall charge a separate payment for sketches, drafts, test type-settings, galley proofs, specimens or similar preparatory works ordered by the customer.

 

14. Printing material

The contractor accepts no liability for third-party printing material, manuscripts and other items, which are not requested by the customer within four weeks of the completion of the order.
The storage and safekeeping of such items, together with raw materials, semi-finished and finished goods, such as print jobs, live matter, films, montages, printing plates of all types, third-party paper etc. will be performed on the customer's account for a maximum period of one year following the fulfilment of the order. The articles will be destroyed at the cost of the customer following the expiry of this the period.

 

15. Insurance

The customer must personally arrange insurance against theft, fire, water damage or any other risks in respect of articles provided to the contractor, especially for manuscripts, printing material of all types, printer matter in storage and other such articles provided. In the case of damage attributable to such risks, the contractor shall not be liable to pay compensation, except in cases of death or personal injury, and in relation to claims made in accordance with the German Product Liability Act, and for an intentional or grossly negligent breach of duty or the culpable breach of fundamental contractual obligations (for a definition, see Art. 9.2.).

 

16. Author corrections

Unless something to the contrary has been agreed, customer and author corrections will be charged according to the actual working time expended.

 

17. Industrial property rights

The customer declares that it is the owner of the rights to the relayed documents and data, especially the right of reproduction, necessary to execute the order. The customer shall indemnify the contractor from all third-party claims connected with an infringement of rights in this respect (e.g. copyright or trademark infringement).

 

18. Print approval (imprimatur)

The customer must examine the galley proofs and press proofs for type-setting and other possible errors, and return these to the contractor along with the written declaration "ready for press". The contractor accepts no liability for errors undetected by the customer, or for changes communicated via the telephone. The customer shall be charged in respect of subsequent changes it makes following the print approval, including any machine downtime caused thereby.

 

19. Excess or short delivery

In general, the full specified print run will be delivered. Excess or short deliveries do not establish a reason for an objection, provided this does not amount to more than 10% of the ordered print run. The amount delivered amount shall be invoiced.

 

20. Periodic work

If no special contractual arrangements have been agreed in respect of periodic work, the following shall apply: 
Regularly repeated works for which no cancellation period and no specific end date have been agreed, may only be cancelled with a notice period of three months to the end of the calendar quarter. The contractor may terminate without notice in the event of a default of payment.

 

21. Notice concerning the protection of customer data

Customer data shall be processed and used for the contractor's own self-promotion, in accordance with the data protection provisions. Insofar as necessary (usually in the case of telephone numbers, fax numbers and email), this will only be performed with the explicit approval of the customer. Irrespective of this, the customer may, at any time, send Hofmann Druck Nürnberg GmbH & Co. KG (Emmericher Str. 10, 90411 Nuremberg) a notice objecting to its personal data being processed and use for the purpose of advertising.

 

22. Company information and registration number

The contractor reserves the right to apply its company information, company logo or its registration number to deliveries of every type, in accordance with customary practices or applicable regulations and the space available.

 

23. Place of performance, legal venue, severability clause

The entire contractual arrangement between the contractor and customer shall be governed by the substantive law of Germany, including in cases where German law refers to the law of a foreign jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

The place of performance and the legal venue for all claims and legal disputes arising from this contractual relationship, including disputes concerning bills of exchange and official documents, shall be the contractor's place of registration, provided that customer is a merchant (registered trader) within the definition of the German Commercial Code (Handelsgesetzbuch, "HGB"), or a legal entity constituted under public law or a public law special fund.

The customer and contractor agree that subsidiary agreements and contractual amendments must be agreed in writing.
The ineffectiveness or unenforceability of one or more of these provisions shall not affect the enforceability of the remainder. In such a case, the contractor and customer shall agree to substitute the ineffective or unenforceable provision with an enforceable one, which best realises their intended commercial purpose.

kontaktdaten [mehr]

hofmann infocom gmbh
emmericher str. 10
90411 nürnberg

fon: 0911 / 52 03 - 100
fax: 0911 / 52 03 - 111
infocom@hofmann-infocom.de

postfach 120 260
90109 nürnberg