General terms and conditions
I. Area of validity
- These terms and conditions are applicable to contracts with traders.
- The deliveries, services and offers of the contractor are exclusively made on the basis of these terms and conditions. In case of a dissent between the parties, these terms and conditions are considered to be accepted with acceptance of the contract offer by the receipt of the goods or the service.
- For permanent terms and conditions, these terms and conditions are also applicable for future business operations, for which there is no expressed reference to them, when they were agreed by the contractual parties for an earlier job.
- Counter-confirmations of the customer referring to his business and/or purchase conditions are contradicted with this.
- Modifications or amendments to these terms and conditions have to be in writing.
- The prices stated in the offer of the contractor are valid with the reservation, that the order data, on which the tendering was based, remain unchanged, at most for 3 weeks after the offer date. The fixed prices stated by the contractor are valid under the precondition that the prices for raw papermaking material have not changed by more than 3 % up or down on the day of delivery compared with the day of offer.
- In the prices of the contractor, VAT in respect of taxable turnover is not included; this has to be paid additionally to the respectively valid amount.
- Subject to other expressed written agreements, the prices of the contractor are considered to be ex works. They do not include freight, postage, insurance and further forwarding expenses. For small quantities up to EUR 500.00 of net value of goods, a share in the freight costs is charged per delivery. 4. For orders with deliveries to third parties, the buyer is considered to be the customer, unless otherwise expressly agreed in writing.
- The customer is charged for subsequent order changes at the instigation of the customer, including the costs of the machine standstill caused by that. Repetitions of test prints, which are demanded by the customer due to slight deviations from the master, are also considered to be subsequent order changes.
- Sketches, drafts, test typesetting, test prints, samples and similar pre-work, which are commissioned by the customer, are also charged, if no order beyond this is awarded. The stipulations of section X. are respectively valid.
- The prices include the first 42 days of storage. From the 43rd storage day a storage fee of 0.50 € per day for each 100 kg will be charged. The amount will be invoiced monthly and will become due within 14 days from the date of invoice.
- The payment (net price plus VAT in respect of taxable turnover) is to be made without reduction within 33 calendar days from the date of invoice. The invoice is made out with the date of delivery, partial delivery or readiness for delivery (in case of a liability to be discharged at the site of the debtor or default in acceptance). Bills of exchange are accepted on special agreement and on account of payment without allowance of a discount only. Discount and expenses are borne by the customer. They immediately have to be paid by the customer. For the timely presentation, protesting, notification and return of the bill of exchange on dishonouring, the contractor is not liable, unless he/she or his/her vicarious agents are charged with intent or gross negligence and there is a violation of a substantial contractual duty.
- On provision of extraordinarily large amounts of paper and cardboard, special materials or preliminary work, advance payment may be demanded for that.
- The customer is only entitled to offsetting, retention or reduction, even if notices of defect or counterclaims are set up, when the counterclaims were legally ascertained or are indisputable. 4. If not further agreed in the conditions of sale, the supplier bears all costs incurred with the payment transaction for deliveries to Bartsch International GmbH.
- Unless otherwise agreed in the conditions of purchase, the supplier shall bear all costs of the monetary transaction associated with the payment for deliveries to BARTSCH International GmbH.
IV. Default in payment
- If the fulfilment of the payment claim of the contractor is endangered due to a deterioration of the financial circumstances of the customer, which occurred or became known after the conclusion of the contract, the contractor is allowed to refuse the service incumbent on him/her until quid pro quo is effected or a security is furnished for it. The contractor may withdraw from the contract, when the customer does not fulfil his request in connection with fixing of a time limit, to furnish an appropriate security in due time. The contractor is also entitled to these rights, when the customer falls into arrears with a service and makes no payment despite appropriate fixing of a final deadline with thread of rejection.
- On default in payment default interest to the amount of 12 % annual interest has to be paid. The customer is entitled to prove, that actually a lower damage caused by default arose for the contractor. At least interest to the amount of the legal interest rate (§ 288 (2) BGB [German Civil Code]) has to be paid. The assertion of further damage caused by default is not excluded with this.
- The contractor executes the shipment for the customer with due diligence, but is, however, liable for intent and gross negligence only, unless a substantial contractual duty is violated. The goods are insured according to the respective haulage conditions of the carrier.
- Delivery deadlines are binding only, when the contractor expressly confirms them in writing.
- As far as the contractor is responsible for the non-fulfilment of bindingly assured deadlines and dates or he/she is in arrears, the customer is entitled to a default compensation to the amount of 1.5 % for each completed week of the default, in total, however, not exceeding the amount of the foreseeable, contract-typical damage in connection with the deliveries or services affected by the default. In total, the claim for damages is limited to the order value as the upper limit. Claims exceeding this, as far as they are not in connection with substantial contractual duties, are excluded, as long as they are based on slight negligence of the contractor.
- For delivery and service delays due to force majeure and to further events, which essentially complicate the delivery for the contractor or make it impossible, for example rightful labour disputes, strikes, lockout, official instructions, etc., even if they occur at the suppliers of the contractor or their sub-suppliers, the contractor is not liable, even for bindingly agreed deadlines and dates. They entitle the contractor to respectively postpone the delivery or service by the duration of the interference plus an appropriate starting-up time. As far as the event of force majeure results in continuous impossibility of performance or takes more than three months, the contractor is entitled to completely or partially withdraw from the contract because of the not yet fulfilled part. The contractor is entitled to partial deliveries and partial services in a reasonable scope, unless a homogeneous delivery was expressly agreed.
VI. Retention of title
- Until the fulfilment (for the acceptance of bills of exchange until their honouring) of all claims (incl. any balance claims from account current), which the contractor is entitled to for any legal argument against the customer now or in future, the contractor, even if the purchase price for special designated claims should have been paid, is granted the following securities, which he/she will release on demand at his/her discretion, as far as their value sustainably exceeds the claims by more than 20 %.
- The goods remain property of the contractor. Processing or transformation is always executed for the contractor as manufacturer, however, without obligation for him/her. We acquire the property in the intermediate or final products, while the customer is the keeper only. If “co”-ownership in the property of the contractor lapses by connection or mixture, it is now agreed already, that the co-ownership of the customer in the uniform matter passes to the contractor ad valorem (invoice value). The customer stores the joint property of the contractor without charge with commercial care. Goods in which the contractor is entitled to joint ownership, will in the following be referred to as reserved goods.
- The customer is entitled to process and sell the reserved goods in regular business dealings, as long as he/she is not in arrears. Pledging or collateral assignments are inadmissible. The claims resulting from further sale or a further legal justification (insurance, unlawful act) with regard to the reserved goods (incl. any acknowledged and causal balance claims from account current), the customer now already assigns as security to the full extent to the customer. The authority for further sale and processing can be revoked only, when the contractor does not properly fulfil his/her payment obligations or sells to a secondary buyer under agreement of a covenant against assignment. The contractor revocably authorizes him/her to collect the claims assigned to him/her for him/her on his/her own behalf. This authorization for collection can be revoked only, when the customer does not properly fulfil his/her payment obligations or sells to a secondary buyer under agreement of a covenant against assignment.
- On access of third parties to the reserved goods, the customer points out the property of the contractor and he/she immediately informs the contractor. If the intervention made by the contractor with regard to the access of third parties to the reserved goods was successful, and if at the defendant as party liable for costs the foreclosure was attempted in vain, the customer has to reimburse the contractor for the total intervention costs.
- On behaviour of the customer contrary to the contract – in particular default in payment – the contractor is entitled to take back the reserved goods or, if applicable, to demand assignment of the claims for restitution of the customer against third parties. The revocation as well as the attachment of the reserved goods by the contractor does not imply a withdrawal from the contract.
VII. Risk, passage and warranty
- The risk passes to the customer, as soon as the consignment was handed over to the person executing the transport or left the warehouse of the contractor for the purpose of shipment. If shipment becomes impossible through no fault of the contractor, the risk passes to the customer with the notification of readiness for shipment.
- The customer immediately has to check the conformity with the contract of the goods delivered as well as the pre- and intermediate products sent for correction. Complaints are admissible within one week after delivery of the goods only. Hidden defects, which are not to be discovered after immediate investigation, can only be set up against the contractor, when the notice of defect is received at the contractors within 6 months after passage of risk (figure 1). Notices of defect have to be in writing.
- For justified complaints, the contractor is, at his/her discretion, excluding other contractual claims, obliged to subsequent fulfilment, to the amount of the order value, unless an assured characteristic is missing or the contractor or his/her vicarious agent is charged with fault. The same is applicable in case of a corrected complaint of the rework or substitute delivery. Claims from manufacturer’s liability remain untouched. In case of culpably delayed, omitted, unsuccessful or missed subsequent fulfilment, the customer may demand a decrease of the compensation (reduction) or withdraw from the contract. § 361 BGB [German Civil Code] (withdrawal for firm deal) and § 376 HGB [German Commercial Code] (firm trade purchase) remain untouched. The liability for consequential damages is excluded, unless the contractor or his/her vicarious agents are charged with intent or gross negligence and a substantial contractual duty is violated.
- Defects of one part of the delivered goods do not entitle to complaint of the complete delivery, unless the partial delivery is of no interest for the customer.
- If foils are part of the order, the following applies additionally: Foils are subject to texture variations as regards transparency, heat resistance and strength. Minor deviations for foils up to 40 µ (+ / – 15%) or for foils over 40 µ (+ / – 10%) as well as + / – 5% for widths and lengths of standard foils are commercially acceptable and cannot be objected to.
- For colour reproductions in all manufacturing processes, marginal deviations from the original cannot be objected to. The same applies when comparing proof and production runs. In addition, liability for defects that affect or impair the value or suitability for use only insignificantly is hereby excluded.
- For deviations in the composition of the applied material, the contractor is liable to the amount of the own claims against the respective supplier only. In such a case, the contractor is exempt from his/her liability, when he/she assigns his/her claims against the suppliers to the customer. The contractor, however, is secondarily liable, as far as there are no claims against the supplier or such claims are not enforceable. The liability of the contractor, however, applies in such case only, that a judicial enforcement of the claims by the customer against the presupplier remained unsuccessful.
- Supplies of foils and printed matter (including data carriers, transmitted data) by the customer, or by a third party engaged by him, do not oblige the contractor to inspect the respective material. This applies especially to any print image errors, incorrectly executed punching, or the customization of the paper inserts. This does not apply to obviously unusable or unreadable data. In data transmissions, prior to sending the customer shall protect any computer programs in accordance with the latest technical standards against viruses. The data backup is the sole duty of the customer. The contractor is entitled to make a copy.
- Excess or short deliveries up to 10 % of the ordered circulation cannot be complained about. Charged is the delivered quantity. For deliveries of special paper issues under 1,000 kg, the percentage increases to 20 %, under 2,000 kg to 15 %.
- Masters, raw materials, printing stocks and objects to be reused as well as semi-finished and finished products are kept beyond the delivery date after previous agreement and against special compensation only.
- Until the delivery date, good care is taken of the objects designated above, as far as they are provided by the customer. The contractor is only liable for loss or damage of the designated objects, when the circumstances, which caused loss or damage could not be prevented by the diligence of a responsible businessman.
- If the objects designated above are to be insured, the customer has to provide the insurance for him-/herself.
IX. Periodic work
Contracts about work recurring on a regular basis can be cancelled with a period of at least three months to the end of a calendar month only.
X. Property, copyright
- The resources applied by the contractor for the production of the contractual product, in particular films, stereotype plates, lithographies, printing plates and standing types, remain property of the contractor and are not delivered, unless they were especially charged.
- The customer is solely liable, when rights, in particular copyrights of third parties, are violated by the execution of his order. The customer has to indemnify the contractor from all claims of third parties for such an infringement.
- The contractor keeps any rights, which he/she is entitled to according to the German Copyright Act.
The contractor is entitled to refer to his company and possible trademarks in a suitable manner on the order products.
XII. Limitation of liability
- A liability for slight negligence of the contractor, his/her legal representative and his/her vicarious agent is – except for lack of assured characteristics or on violation of substantial contractual duties – excluded. For intent and gross negligence, the liability is according to the legal stipulations. The liability is limited to the foreseeable, contract-typical damage. The upper limit of the liability is in any case the order value.
- The liability for gross negligence of the simple vicarious agent is – except for the violation of substantial contractual duties – by scope limited to the foreseeable damage.
- The above limitations of liability (no. 1 and 2) do not apply to the extent that there is an injury to the body, or body and life, or product liability laws exist.
XIII.Applicable law, Jurisdiction, Separability
- For the terms and conditions and the all legal relations between contractor and customer, the laws of the Federal Republic of Germany are applicable. The stipulations of the Hague Rules on International Sales Contracts as well as the United Nations Convention on Contracts for the International Sale of Goods (CISG) are not applicable.
- Exclusive jurisdiction for all disputes directly or indirectly resulting from the contractual relation is Munich.
- Should a stipulation in these terms and conditions or a stipulation within the scope of a further agreement be or become ineffective, the effectiveness of a further stipulation or agreement is not affected by this.
22nd March 2016