General Terms and Conditions dated 01.01.2013 - hofmann media nürnberg

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 service, and shall remain valid for all future business relations, even if there is no explicit repeat reference to them. Unless expressly acknowledged in writing by the contractor, the customer's or any other party's alternative conditions shall not be binding on the contractor, including in the event that it does not explicitly repudiate them in each individual case. Even if the contractor makes reference to a written document containing or referring to the conditions of the customer or a third party, it may not be implied that we have agreed that such conditions should apply.

 

1. Conclusion of contract, prices, scaled prices

All the contractor's offers are made without obligation and are non-binding, unless they are labelled as binding, or contain a particular period for acceptance, and they are solely intended for entrepreneurs within the definition of the Section 14 German Civil Code (Bürgerliches Gesetzbuch, "BGB"). No assurance is given regarding the exclusion of the customer's competitors.

Orders for ads may be placed by telephone, in writing, by facsimile, by email or online. The contractor accepts no liability for errors in transmission. An agreement shall be concluded only upon the issue of the contractor's written order confirmation.

Amendments and additions to the concluded agreements, including these General Terms and Conditions, must be made in writing in order to be valid. Communications sent by facsimile fulfil this written form requirement; other forms of telecommunications, especially email, do not.

Orders for ads, loose inserts and bound-in inserts or other special ad formats shall only become binding, following the presentation of a specimen copy and its approval by the contractor. Orders that induce the reader to think these constitute the editorial content a newspaper or magazine, or which contain third-party advertising shall only be accepted upon a prior express agreement. The contractor reserves the right to reject orders by applying uniform standards, even after the conclusion of the agreement, or to cancel said agreement if the content breaches statutory or official regulations, or if their publication is untenable to the contractor. The customer alone is responsible for ensuring the lawfulness of its order. It shall indemnify the contractor from all third-party claims, including any and all costs of legal action. Any rejection of an order shall be communicated to the customer without delay.

The customer undertakes to provide the contractor with all information and documentation needed for the proper execution of the order, in good time and free of charge.

Advertising agencies and advertising brokers are obliged to adhere to the contractor's price list regarding their offers, contracts or invoicing with clients. The agency commission payable to the contractor may not be passed on to the customer in whole or in part. Commission is payable only for brokering third-party orders.

The price for the publication of an advert is based on the price list applicable at the time of the publication. Unless otherwise stated, the listed prices are in Euro, excluding value-added tax. The customer shall be charged in respect of subsequent changes requested by it. Unless the customer and the contractor have agreed something to the contrary, changes to the prices for adverts shall become effective immediately.

The scaled price shown in the price list are only valid to the customer for adverts published within a one-year period (ad year). Discounts for multiple placements shall only apply during said ad year. Unless otherwise agreed, the time limit commences with the publication of the initial adverts.

Advertising orders placed from abroad, and for which no value-added tax is payable, shall be invoice excluding value-added tax. The contractor is entitled to subsequently bill the value-added tax in the event that the fiscal authorities determine that the advert is liable to tax.

 

2. Payment conditions

The invoice (net price plus value-added tax) shall be issued on the day the advert is displayed, and payment is due immediately, without deduction. 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 the customer fails to pay or only pays a part by the due date, the outstanding sums shall be charged interest at the rate of 8% p.a. from the due date; this is without prejudice of the right to claim a higher rate of interest and further compensation in the event of a default.

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. The customer shall bear all charges, costs and expenses, incurred in connection with any successful legal actions pursued against it outside of Germany.

 

3. Contractual execution

Advertising orders must be completely performed and settled within one year of the conclusion of contract.

The customer is responsible for the timely delivery of fault-free print masters. The contractor shall promptly request a replacement delivery for visibly unsuitable or damaged print masters. The contractor is responsible for delivering the customary print quality of the title in question, within the limits determined by the printing material. Print masters shall only be returned to the customer within four weeks of submission, and following a special request, otherwise they shall become the property of the contractor. The duty to retain shall end eight weeks after the publication of the final advert, unless an express agreements has been made to the contrary.

Proofs shall only be provided at the express request of the customer. The customer shall be responsible for ensuring the accuracy of the returned proofs. If the proof is not returned to then contractor in good time, approval of the proof shall be deemed issued.

Unless expressly agreed in writing, the contractor does not guarantee that the ads, loose inserts or bound-in inserts or other special ad formats will be placed in particular positions within the magazine. If they resemble editorial content in their appearance, advertisements must be clearly distinguished from such content through the use of an alternative font. The publisher is entitled to clearly label ads as advertising, if they are not identifiable as such.

The advertising deadlines and publication dates stated in the price list are non-binding for the publisher. The publisher may choose to modify the production sequence correspondingly over the short term.

Advertising orders can only be cancelled in good time, and in any case no later than by the advertising deadline. Communications sent by facsimile fulfil this written form requirement; other forms of telecommunications, especially email, do not. The customer is required to make payment in respect of any advert already released for printing. Otherwise, the publisher may, in accordance with the statutory provisions, demand reimbursement of the costs incurred to up to the time of cancellation.

The contractor shall provide the customer with a free copy of the tear sheet. If this cannot be produced, a photocopy will be supplied instead.

 

4. Warranty

Unless expressly agreed in writing, no guarantee is made regarding the placement of adverts in particular issues or editions, or at particular locations.

The contractor is duty bound to perform a typographically faultless reproduction of advertisements on print paper, in accordance with the hard copy proofs. This is conditional on the provisions of suitable print masters (see details in price list). The risk of any defects passes to the customer upon approval, provided this does not concern defects, which, following the approval, only occur during the subsequent production process or only become identifiable at that time.

In the case of print masters provided in digital format for colour adverts, the customer must at the same time provide a colour proof, otherwise it shall have no claims to reimbursement in respect of any colour variations.

The customer must promptly raise any complaints in relation to obvious defects. If an advert is printed containing defects, despite print masters having been supplied in time and the objection raised promptly, the customer may demand that a replacement advert be printed. The claim to subsequent performance shall be excluded in the event that this entails an unreasonable amount of costs to the contractor. The customer shall be entitled to rescind the agreement or demand a reduction in payment in the event that the contractor allows a reasonable stipulated grace period to expire without result, or if it refuses subsequent performance, or if subsequent performance is untenable to it or otherwise proves unsuccessful; any reduction in price will be based on the extent to which the purpose of the advert is negatively affected. Warranty claims are subject to a limitation period of one year following the publication of the advert in question.

If the customer fails to observe the contractor's recommendations concerning the production and transmission of digital printing material, the latter shall not be entitled to any claims if errors occur in the publication of the advert. This also applies, if the customer culpably fails to observe any other provisions contained in the General Terms and Conditions and the price list, and this is directly connected with the quality of the publication of the advert.

If printing material is relayed in digital format to the contractor, the customer is liable for ensuring that the transmitted files do not contain any computer viruses. The contractor is entitled to delete files containing computer viruses, without the customer deriving any claims herefrom. The contractor also reserves the right to claim compensation in the event that it sustains further damage as a result of these computer viruses.

The contractor accepts no liability for the accuracy of the quantities or qualities indicated on material (loose inserts, bound inserts etc.) provided by the customer.

 

5. Liability

5.1. 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.

5.2. 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 services to other legally protected interests belonging to the customer. Liability is excluded, moreover, in respect of ordinary or average negligence.

5.3. The contractor shall only store the relayed print files for the duration of the order. The contractor shall not be liable for the loss of files provided to it by the customer; the customer is personally responsible for making and retaining backup copies. This disclaimer shall not apply in the case of Art. 5.1.

5.4. The risk of any defects passes to the customer upon approval, provided this does not concern defects, which, following the approval, only occur during the subsequent production process or only become identifiable at that time. This disclaimer shall not apply in the case of Art. 5.1.

5.5. The limitation on liability described in Art. 5.1. – 5.4. 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.

5.6. The contractor shall be released from its obligation to fulfil the order in the event of force majeure (operational interruptions, confiscation, transport disruptions, general scarcity of raw materials and energy), or if it is affected by labour disputes through no fault of its own; no compensation claims exist in this respect.

5.7. The contractor does not guarantee that advertising content will be accurately reproduced, in the case of misunderstandings which occur in the case of orders, corrections or changes communicated via the telephone. The same applies to ambiguity in relation to written orders, corrections or changes.

 

6. Limitation period

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

6.2. The limitation period commences with the placement of the advert.

6.3. 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 aforementioned 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.

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

 

7. Industrial property rights, immoral content

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).

The customer undertakes to respect the contractor's copyright and rights of use and exploitation. Unless something contrary is agreed in the applicable service description, upon making complete payment the customer shall only acquire the rights of use to the works designed by the contractor as are necessary for the contractual purpose for the duration of the agreement. Any editing or substantive change to the works designed by the contractor shall only be permitted with its prior consent. The reassignment of licensing of the rights of use to third parties by the customer shall only be effective, if the contractor has issued its prior written consent. This also applies to any presentation prepared by the contractor prior to any conclusion of contract.

The contractor will not accept orders with content which is punishable under criminal law, or is immoral or which violates fundamental ethical principles. The contractor reserves the right of withdrawal in such cases.

 

8. 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 express 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.

 

9. Place of performance, legal venue, severability clause

The entire contractual arrangement between the contractor and customer shall be governed by the law of the Federal Republic 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.

Nuremberg is the place of performance and the legal venue for all claims and legal disputes arising from this contractual arrangement, including disputes concerning bills of exchange and official documents.

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.

If the agreement exhibits any loopholes, the provisions deemed valid will be those which are in accordance with the sense and purpose of the agreement and which would have been agreed had the issue been contemplated at the outset.

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