Max-Planck-Straße 8 | 25335 Elmshorn | Phone: 04121 8629 | Fax: 04121 85296 | email@example.com
FULFILLMENT MAIL + MARKETING GmbH
Fulfillment Mail + Marketing GmbH
Max-Planck-Straße 8 (Entrance Nr. 12 )
Phone: +49 (0)4121/ 49 160-0
Telefax: +49 (0)4121/ 85 296
Authorized Managing Director: Patrick Richter
Register Court: Amtsgericht Elmshorn
Registration Number: HRB 2047
Tax Identification Number: DE 203 755 169
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Site operator (address as above)
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General Terms and Conditions
General Terms and Conditions of Sale, Delivery and Payment
Fulfillment Mail + Marketing GmbH,
Max-Planck-Str. 8, 25335 Elmshorn/Germany
I. Scope / Formation of contract
Orders shall be carried out solely on the basis of the following conditions. No other terms or conditions shall form part of the contract, even if we have not expressly objected to them. s. 305b BGB [German Civil Code] shall remain unaffected.
1. The prices stated in the Contractor's offer shall apply on the condition that the order data on which the offer is based does not change, but no longer than four weeks from the date on which the Customer received the offer. For orders with deliveries to third parties, the person who placed the order is deemed to be the Customer, unless another agreement has been explicitly made. Contractor's prices do not include any value added tax and are quoted ex works. They do not include packing, freight, postage, insurance or other forwarding costs.
2. The costs arising of subsequent alterations at the request of the Customer, including any machinery downtime as a result thereof, shall be charged to the Customer. The term subsequent alterations shall also include repetitions of print proofs which are demanded by Customer due to minor deviations from the print template.
3. Sketches, drafts, specimen sets, specimen prints, correction proofs, changes to delivered/transferred data and similar preparatory work which are requested by the Customer shall be invoiced.
III. Conditions of payment
1. Payment by the Customer is due immediately after receipt of the invoice without any deductions. Any agreement regarding a discount shall not apply to freight, postage, insurance or other shipping costs. The invoice shall be made out on the date of delivery, partial delivery or when the goods are ready for delivery (if Customer is responsible for picking them up, default of acceptance).
2. Reasonable advance payment may be demanded in the case of exceptional advance work to be done.
3. Set-off by Customer or the exercise of a right of retention is permitted only with claims that are undisputed or have been upheld by final decision of a court of competent jurisdiction. This shall not apply to any claims asserted by the Customer with regard to any costs of completion or costs of correcting a defect.
4. If it becomes apparent after conclusion of the contract that the Customer may not be able to meet its payment obligations, the Contractor may demand advance payment, retain goods not yet delivered and suspend the execution of unfinished work. The Contractor shall also have these rights if the Customer has delayed payment for proper deliveries, which are based on the same legal relationship. s. 321 II BGB shall remain unaffected.
5. If the Customer does not pay the price including incidental expenses according to section II ("Prices") within 30 days after invoice receipt, the Customer gets into default even without reminder. In case of default of payment, default interest of 8% above the base interest rate shall be charged. This shall not exclude the assertion of further claims for damages arising of the delay.
1. The delivery period shall be agreed individually or shall be fixed by the Contractor upon acceptance of the order.
2. The Contractor shall only be entitled to partial deliveries if
the partial delivery can be used by the Customer as contractually agreed,
the delivery of the remaining ordered goods is guaranteed, and
no significant additional work or additional costs are incurred by the Customer on account of this.
3. If goods are dispatched, the risk of accidental loss and accidental deterioration of goods is transferred to the Customer as soon as the shipment is handed over to the carrier.
4. If the Contractor delays delivery, the Customer shall only be justified in exercising its rights in accordance with s. 323 BGB if the Contractor is liable for the delay. This provision does not alter the burden of proof.
5. Any disruption of operations such as strikes, lockouts or any other cases of force majeure occurring either at the Contractor's premises or those of its sub-suppliers, for which the Contractor is not answerable, shall only entitle the Customer to withdraw from the contract if the Customer can no longer reasonably be expected to wait any longer; in all other cases, the agreed delivery deadline shall be postponed by the duration of the delay. Termination shall be possible, however, at the earliest four weeks after the occurrence of the aforementioned disruption of operations. Any liability of the Contractor is, in such cases, excluded.
6. In accordance with s. 369 HGB [German Commercial Code], the Contractor has a right to retain any test prints and stamps, manuscripts, raw materials and other items put at the Contractor's disposal by the Customer until all the amounts owed, which are due as a result of the business relationship, have been settled in full.
7. For call orders, the Customer undertakes to accept the total amount agreed in the order. The Customer's call obligation shall constitute a principal contractual obligation. In the case of call orders, the ordering party must call the goods within a year of the order's confirmation unless otherwise agreed. If the goods have not been called within that period, the Contractor has the right to grant a grace period of two weeks for the acceptance of the ordered goods not yet called. If this period expires to no avail, the Contractor shall then be entitled, at its discretion, to demand the acceptance and payment of the entire remaining volume or to withdraw from the contract in accordance with s. 323 BGB. Contractor's further legal rights and claims, including the right to claim damages, remain unaffected.
V. Retention of title
1. The supplied goods remain the property of the Contractor until complete payment of all debts due to the Contractor at the date of invoice has been made by the Customer. Such goods may not be pledged to third parties nor be assigned by way of security until they have been paid in full. If third parties access the goods which belong to the Contractor, the Customer must notify the Contractor immediately in writing.
2. The Customer shall only be entitled to resell the goods in the ordinary course of business. The Customer hereby assigns its claims from the resale of the reserved goods to the Contractor and the Contractor accepts such assignment. If the realised value of the collateral exceeds the amount payable to the Contractor by more than 10%, the Contractor shall release collateral of its choice upon the Customer's request.
If the goods delivered and owned by the Contractor are processed or reprocessed, the Contractor shall be considered co-owner only up to the amount of the invoice price (final invoiced amount including value-added tax) of the goods to which it retains title. The property thus acquired shall be deemed as reserved property.
VI. Complaints / Warranty
1. The Customer is in all cases obliged to promptly inspect goods to check that they conform to the contractual specifications, including all preliminary and interim products submitted for inspection. The risk of any defects shall be transferred to Customer with the declaration of readiness for printing / declaration of readiness for production insofar as such do not concern defects which first occurred or could be discovered in the production process following the declaration of readiness for printing / declaration of readiness for production. The same shall apply to all other Customer releases.
2. Obvious defects or deficiencies must be reported within a period of one week after receiving the goods, hidden defects must be reported within one week of discovery, otherwise the assertion of warranty claims is excluded.
3. In case of justified claims, the Contractor is obliged and entitled to first rectify defects and/or deliver replacement products at its option. If the Contractor does not meet such obligations within a reasonable period, or if the rectification of the defects fails despite repeated attempts, the Customer shall be entitled to demand a reduction in payment (abatement) or a cancellation of the contract (withdrawal).
4. Defects of part of the delivered goods do not entitle the Customer to reject the whole shipment unless the partial delivery is of no interest to the Customer.
5. With regard to colour reproductions, regardless of the production methods, minor divergences from the original do not constitute a defect. The same shall apply for the comparison between other proofs (e.g. digital proofs and print proofs) and the final product. Moreover, any liability for defects which either do not, or merely insignificantly, impair the value or fitness for use of the goods is excluded.
6. The Contractor is not under any obligation to check items (including data media or electronically transmitted data) supplied by the Customer or by any third party instructed by the Customer. This shall not apply to data, which is obviously incapable of being processed or unreadable data. In the case of data transmission, the Contractor shall use virus protection programs that comply with the latest technical standards before the data is transmitted. Data backup is the sole responsibility of the Customer. The Contractor shall be entitled to make a copy of the data.
7. Excess or short deliveries of up to 10% of the amount ordered shall not constitute a defect and shall not give rise to a complaint. The same amount shall be invoiced. In the case of deliveries of custom-made paper of less than 1,000 kg, the percentages increase to 20%, under 2,000 kg to 15%.
I. The Contractor shall be liable for
- any culpable injury of life, body or health, and
- for damage caused by intent or gross negligence, even when based on gross negligence or intentionally culpable behaviour on the part of a legal representative or a vicarious agent.
2. In addition, the Contractor shall be liable for
- slightly negligent violation of essential contractual obligations including those committed by its legal representatives or vicarious agents. Essential contractual obligations are obligations that are absolutely necessary for the proper performance of the contract, whose breach will put the achievement of the contractual purpose at risk and that the Customer may normally trust and expect to be complied with. In such cases, the liability shall be limited to the loss or damage that is foreseeable and typical for the type of contract.
3. Finally, the Contractor shall be liable
- in the case of fraudulent concealment of defects and deficiencies and assumed guarantee for the quality and nature of the goods and
- with regard to claims based on the Product Liability Act.
4. The liability shall be limited to the contract value of our services without postage and third-party costs.
5. In all other respects, the Contractor's liability shall be excluded. This shall apply as well to any liability for a constant and continuous availability of the online trading system. With the current state of technology, data communication via the Internet cannot be guaranteed to be error-free and/or to be available at all times.
VIII. Limitation period
The Customer's claims to warranty and compensation (VI. and VII.) shall lapse in one year beginning with the handover or delivery of the goods with the exception of the claims for damages specified in VII. 2. This shall not apply where the Customer has acted with intent to deceive.
IX. Commercial practice
In commercial activities, the commercial practices of the printing industry shall apply (e.g. no obligation to hand over intermediate products such as data, control prints or print plates that were produced to create the final product that is the subject of the agreement), provided the order does not specify otherwise.
Products which the Customer is entitled to, in particular data and data storage media, shall only be archived pursuant to an express agreement and for separate remuneration beyond the date of the delivery of the finished product to the Customer or its agents. If the aforementioned items are to be insured, this shall be done by the Customer itself, unless some other agreement has been made.
XI. Regularly recurring work
Contracts for regularly recurring work may be terminated by giving three months' notice.
XII. Industrial property rights / copyright
The Customer guarantees that its printing orders, in particular the material supplied by the Customer, do not infringe upon rights of third parties, e.g. copyrights, trademark or personal rights. Insofar the Customer shall hold the Contractor harmless from all claims of third parties, including litigation and legal defence costs.
XIII. Place of performance, place of jurisdiction, effectiveness
Place of performance and place of jurisdiction shall be 25335 Elmshorn/DE, the Contractor's registered office, for all disputes arising from the contract if the Customer is a registered trader, a legal entity or a special assets fund under public law or if the Customer has no place of domicile in the Federal Republic of Germany. The contractual relationship shall be subject to German law; the United Nations Convention on Contracts for the International Sale of Goods shall not apply.