General Terms and Conditions dated 01.01.2013 - hofmann medien nürnberg GmbH

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 supply or 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

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"). The legal relations between us and the Customer shall be solely governed by the relevant agreement concluded in writing, including these General Terms and Conditions. These documents constitute the totality of the agreements made between the contractual parties in relation to the contractual object. The contractor's oral commitments made prior to the conclusion of this agreement are not legally binding. Oral agreements made between the contractual parties shall be replaced by this written agreement. Amendments and additions to the concluded agreements, including these 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.

The contractor reserves ownership to and copyright in all the drafts, sketches, final artwork, originals, printer matter, etc. Unless it has the express written prior permission of the contractor, the customer is not entitled to allow any third party access to the actual aforementioned articles or the subject matter contained therein, nor may it make any disclosures in respect of them or use or reproduce them or allow any third party to do so. If these documents are no longer needed in the ordinary course of business or if negotiations do not result in the conclusion of an agreement, the customer shall, if requested by the contractor, return all the aforesaid documents and destroy any copies it has made thereof.

The customer undertakes to inform the contractor in good time regarding the type, scope and time of the requested services, and to provide it, within the time required and free of charge, with all information and documentation needed for the proper execution of the order.

The customer warrants that the content of the delivered material is not in breach statutory provisions. It shall indemnify the contractor from all third-party claims, including any and all costs of legal action.

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. Unless otherwise stated, the listed prices are in Euro, and apply ex works, excluding value-added tax. The prices do not include packing, freight costs, postage, 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.

 

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.

Payment periods commence with the invoice date. Payment (net price plus value-added tax) shall be due without deduction within 10 days of the invoice date. The contractor reserves the right to demand advance payment or part payments in respect of the work performed. 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. 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 (goods subject to retention of title). Any pledge or transfer of title for security purposes is not permitted without the contractor's consent. The customer must promptly notify the contractor in writing, without delay, if and to the extent there is third-party interference with the goods subject to retention of title. The retention of title shall be conclusively extinguished at the time of the payment of all receivables still outstanding. 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.

The customer, by way of precaution, here and now fully assigns to the contractor all its claims to receivables arising from the resale or any other such legal basis (insurance, tort etc.) connected with the goods subject to retention of title; no separate declaration is necessary in this respect. 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.

The retention of title extends to the full value of the products produced through the processing, mixing or combination of the goods subject to retention of title, in which context the contractor shall be deemed to be the manufacturer. If a third-party ownership right endures following processing, mixing or combining with goods belonging to that third party, the contractor shall acquire co-ownership in proportion to the invoice value of the processing, mixed or combined goods.

 

4. Deliveries

Unless otherwise agreed, deliveries are deemed made ex supplier's works. Delivery is made at the 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 shall only arrange transport insurance at the express instruction and cost of the customer, otherwise the goods shall only be insured in accordance with the applicable terms and conditions of consignment of the freight forwarder in question.

If the customer is default of its obligation to accept, fails to fulfil a duty to assist, or if our delivery is delayed for other reasons attributable to the customer, the contractor shall be entitled to demand compensation for the loss we thereby sustain, including additional costs.

 

5. Delivery period

Delivery times are binding only if guaranteed in writing by the contractor. The agreement of a delivery date does not entail that the sale must be performed at a fixed point in time. Where shipment has been agreed, the delivery periods and delivery dates refer to the point in time the goods are handed over to the carrier, transport company or any other persons commissioned with the transport. Its rights in connection with the customer's default notwithstanding, the contractor may demand that the customer extend  delivery and service periods or  postpone delivery and service dates in the event that the latter has failed to fulfil a contractual duty of co-operation vis-à-vis the contractor.

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 confirmation of receipt of the order, 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. 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. If the customer's supplied print file is defective or does not correspond to the stipulated specifications, a new delivery time will commence on the delivery of the fault-free print file. 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. 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. 8.

 

7. Objections

Objections concerning obvious defects must be raised in writing without delay. If the customer fails to perform a proper inspection and/or issue a defect report, liability shall be precluded in respect of non-reported, obvious defects. 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.

To the exclusion of other claims, the contractor must render subsequent improvement and/or substitute delivery, the choice being at its discretion, unless an assured quality is lacking, or if the contractor or its vicarious agents is/are culpable of an intentional or grossly negligent breach of duty. The same applies in the event of a justified complaint concerning the subsequent improvement or subsequent delivery. In the event of a delay to, omission or failure of the subsequent improvement or substitute delivery, the customer may demand a reduction of payment or a cancellation of the agreement. 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 determine otherwise.

Otherwise, the contractor is liable only in accordance with the provisions of Art. 8.

 

8. Disclaimer/liability

8.1. 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.

8.2. 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.

8.3. The contractor shall only store the provided print files for the duration of the order, unless an alternative storage term is expressly agreed. 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. 8.1.

8.4. 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. 8.1.

8.5. The limitation on liability described in Art. 8.1. – 8.4. 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, its administrative bodies or other such representatives.

 

9. Transmission of digital documents

9.1. If the customer fails to observe the contractor's recommendations concerning the production and transmission of digital documents, the latter shall not be entitled to any claims if these are erroneously processed. 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 processing.

9.2. If documents are 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.

 

10. Industrial property rights/copyright

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.

If rights to use or commercially exploit (e.g. rights to photos or film, copyright or GEMA rights) or third-party permissions (e.g. because of personality rights) are needed in order to create or implement the contractor's work results, the contractor shall, upon a request by the customer, obtain these third-party rights and permissions in the name and for the account of the customer. Unless an agreement is made to the contrary, this shall only take place for the period of time and geographical and material extent necessary for the proposed activity. Additional demands made in accordance with Sections 32 and 32a German Copyright Act shall be borne by the customer.

The customer is liable for ensuring that the contents of the templates delivered by it, do not breach any legal regulations and are not encumbered by any third-party rights. The customer shall indemnify the contractor from any claims made in this connection.

 

11. Limitation period

11.1. 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.

11.2. By way of derogation from Section 438 (1) no. 3 German Civil Code (Bürgerliches Gesetzbuch, "BGB"), the general limitation period for claims in connection with material faults and defective title shall be one year.

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

11.4. 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 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 (for a definition, see Art. 8.2.).

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

 

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

 

13. Author corrections

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

 

14. 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 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.

 

15. 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.

 

16. 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 contains any loopholes, the provisions that shall be applied are those will correspond with the sense and purpose of the agreement, and which would have been agreed had the issue been envisaged 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