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Standard Terms & Conditions of Sale and Delivery

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Standard Terms & Conditions of Sale and Delivery of B+S Mailmanagement GmbH & Co. KG

01.07.08

I. General

The following commercial terms and conditions shall govern any quotations and agreements existing between B+S Mailmanagement GmbH & Co. KG (referred to hereinafter as “B+S“) and its contractual partners (referred to hereinafter as the “Client”), to the extent that they are commercial counterparties. Derogations from these Standard Terms & Conditions of Sale shall be subject to a written express agreement. The Client’s terms and conditions of purchase shall not be applied. In the context of current commercial relationships our terms and conditions shall also apply to all future transactions.

II. Offers and the conclusion of an agreement

To the extent that B+S invites the client to submit an offer, such invitation shall be without obligation in terms of price, volume, delivery deadline and delivery options. An agreement shall only come into being once the order has been confirmed in writing by B+S or once the order has been executed.

B+S shall be entitled to sub-contract the order or portions of the order to third parties.

Side agreements or oral assurances shall not be binding upon B+S until it has confirmed these in writing.

 

III. Termination of the agreement

Section 649 of the Bürgerliches Gesetzbuch (German Civil Code) shall apply to the termination of the agreement by the Client.

B+S shall be entitled to terminate the agreement on material grounds. Material grounds for termination shall in particular be constituted by an apparent breach of the Constitution of the Federal Republic of Germany or the other statutory provisions of the Federal Republic of Germany or an infringement of the constitution or the other statutory provisions of the relevant country of delivery or any other country of the European Union, as well as any anti-competitive or immoral content in the printed material to be produced. The Client shall in such a case be obliged to remunerate any performance which has already been given. Should any fault lie with the Client, B+S shall in addition be entitled to compensation.

 

IV. Preparation of the documentation

The Client shall be solely responsible for the timely and faultless preparation of the documentation necessary for production (and in particular print data, address data and proofs). Such preparations must be effected by delivery in accordance with the specifications of B+S.

If the documentation required to execute the order or the materials to be provided by the Client are not provided by the agreed date or are not in the required form or are not of the necessary quality, the Client may not make any claims on the basis of any delay or deficiencies in quality, to the extent that such claims are based on the documentation; its obligation to make payment shall remain unaffected. Furthermore the Client shall bear all of the costs which are caused by the delay.

B+S shall not be obliged to check the addresses provided by the Client or the address optimisation. To the extent that nothing is agreed to the contrary, the weight of the products to be produced shall not be checked. Colour specifications shall only be binding if the proofs bear a Fogra-control-wedge and have been produced according to professional standards and with devices (no laser printer) which are suitable for this.

The documentation and materials which have been provided to B+S by the Client shall only be returned to the Client upon receipt of an explicit request and at the expense of the Client after completion of the order. No liability shall be accepted for loss or damage.

If the documentation prepared by the Client does not correspond to the specifications of B+S, the Client shall amend such documentation duly; otherwise the order may not be completed by the agreed date and/or may be completed with reduced quality.

In the event of slight variations in the specifications B+S shall be entitled to amend and edit the documentation in exchange for appropriate remuneration.

The documentation relating to the approval of the print data or the approval of the personalisation shall as a general rule be sent by e-mail and shall be checked by the Client. If the approval is not received in time, the Client must if applicable accept any delays in delivery resulting therefrom and pay any additional costs arising.

Subsequent changes are to be notified by the Client in writing in sufficiently good time that it is technically possible to implement them. Charges will be made in respect of subsequent changes and shall only be deemed to have been accepted after such acceptance has been confirmed in writing by B+S.

 

V. Price and payment conditions

The price shall include shipping costs, packaging and insurance, as well as any value-added tax which is payable, to the extent that nothing is agreed to the contrary. In the case of staggered partial deliveries B+S shall be entitled to issue an invoice for all of those parts of the order which have already been completed immediately after the first delivery. The invoices of B+S shall be due and payable without any deductions 14 days from the date of the invoice. Bank fees, in particular in the case of cross-border payments, shall be borne by the Client. Cheques shall only be accepted on account of performance.

Should the Client be late in making a payment which is due, B+S shall be entitled without giving special notice to refuse to make all subsequent deliveries and to perform all subsequent services until the Client has paid for them in advance (and has paid the undisputed portion of the outstanding sum owed). B+S shall be entitled to interest on late payments at the statutory rate.

If after the agreement has been concluded it becomes clear that the entitlement of B+S to receive payment is being put at risk through the insufficient ability of the Client to make such payment, section 321 of the Bürgerliches Gesetzbuch (German Civil Code) shall apply. Such a risk shall exist in particular when the credit insurer of B+S refuses to cover the order or parts of the order.

The Client shall only be entitled to offset sums owed by it to B+S against sums owed by B+S to it if its counterclaims have been legally established, are undisputed or are acknowledged by B+S. Furthermore the Client shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

 

VI. Delivery and delivery periods

Specified delivery periods shall only begin to run when all of the necessary and/or agreed preconditions have been satisfied.

Sale and delivery of the goods shall depend on correct and punctual supply to ourselves. Punctual and appropriately sized partial deliveries are permissible and may be invoiced on an individual basis. Should events of force majeure, industrial action or its effects, or other events which B+S according to the circumstances in spite of its reasonable care cannot avert – irrespective of whether such circumstances affect B+S or its suppliers or sub-contractors – prevent it from fulfilling its obligation to make deliveries, the delivery period shall be prolonged for the duration of the delay. If as a result of such events it should subsequently become impossible to make delivery, or become unreasonable for one of the parties to make or accept such delivery, both parties shall be entitled to withdraw from the agreement.

In the event of a late delivery or the inability to make delivery which is attributable to B+S, the Client shall be entitled to withdraw from the agreement in accordance with the statutory conditions. Should B+S be late in making delivery and should the Client suffer a loss as a result, the Client shall be entitled to demand a one-off payment in respect of compensation for such delay. Such payment shall for each full week of delay amount to 0.5%, subject however to a maximum total of 5%, of the value of each portion of the total delivery which as a result of the delay does not arrive punctually or cannot be put to use in accordance with the terms of the agreement. Moreover, section X of these Terms & Conditions shall apply to any liability for delay or the inability to deliver.

 

VII. Transfer of risk

Shipping shall be at the expense and risk of the Client, even in cases where carriage is paid. In the event that no specific method of transport is stipulated, the transport route and the method of transport shall be selected by B+S. If goods which have been notified as ready for dispatch are not collected in accordance with the agreement, risk shall be transferred to the Client upon the notification of such readiness for dispatch and the remuneration shall become payable. B+S shall then be entitled at its own discretion to store the goods at the expense and risk of the Client.

 

VIII. Obligations of the Client to co-operate

The Client shall be obliged before the order is issued to confirm whether the ordered goods are suitable for their intended purpose and/or whether such goods may be used or processed in accordance with the specifications stipulated by the Client or its customers. In particular, the Client shall be obliged to clarify the statutory and postal specifications.

The Client shall ensure that in the execution of its order no statutory provisions of the Federal Republic of Germany or of the country of delivery or any other country of the European Union, as well as no third-party rights, and in particular intellectual property rights, trademark rights and/or other industrial property rights, are infringed. Should any infringement take place, the Client shall be obliged to indemnify B+S against any claims made by third parties on the basis of any infringement of such rights. The Client shall be solely and exclusively liable for the content of the goods produced.

IX. Liability for defects / Warranties

The Client shall confirm that the delivered goods and the initial and interim copies which are provided for corrections have been produced in accordance with the agreement. The risk of the existence of any errors shall be transferred to the Client upon the declaration of readiness for press/readiness for production, to the extent that it is not a question of errors which have arisen or could have been identified only during the production process after the declaration of readiness for press/readiness for production. This shall also apply to any other declarations of approval by the Client.

The Client shall examine the goods immediately upon their arrival. Identifiable defects shall be notified in writing to B+S within one week of the goods’ arrival (immediately in the case of commercial counterparties), with a detailed specification of the points constituting the subject-matter of the complaint. Should this not occur, the goods shall be deemed to have been approved. Concealed defects shall be notified immediately upon their discovery. In the case of a justified complaint B+S shall be obliged to rectify the defects and/or make a replacement delivery at its discretion. In the event of a delayed, omitted or faulty rectification or replacement delivery the Client may demand a rebate in the remuneration payable (a reduction) or the rescission of the agreement.

If only an insignificant defect exists and the goods are usable in a manner which shall not cause any prejudice to the Client, the Client shall only be entitled to a reduction in the purchase price. Should B+S deliver defect-free goods by way of subsequent performance, or should the Client withdraw from the agreement, the Client shall pay compensation for the use derived therefrom.

Defects in a portion of the delivered goods shall not entitle the Client to make a claim in respect of the entire order, unless such partial delivery is without value for the Client.

No claims may be made in respect of insignificant variations from the artwork/master in the case of colour reproductions. Nor may any claims be made in respect of variations in colour resulting from inappropriate specifications.

The materials (including data storage media and transferred data) delivered by the Client or by any third party engaged by it shall not be subject to any obligation to carry out checks on the part of B+S. This provision shall not apply to data which is obviously incapable of being processed or unreadable data. When transferring data, the Client shall before dispatch of the data run the most up-to-date programs which protect against computer viruses. The Client shall be solely responsible for data security. B+S shall be entitled to make copies.

It shall not be permissible to make claims in respect of deliveries which are in excess of or less than the ordered print run by up to 10%. An invoice shall be issued for the volume which is delivered.

The warranty period for new items shall comprise one year. The limitation period in the event of a delivery recourse in accordance with sections 478 and 479 of the Bürgerliches Gesetzbuch (German Civil Code) shall not be affected hereby. Claims in respect of compensation for death, physical injury or the impairment of health as a result of defects or in accordance with the Produkthaftungsgesetz (Product Liability Act) shall likewise not be limited by these provisions. These provisions shall also not limit any other claims made in accordance with the laws governing warranties in the event of gross negligence, intent or the breach of material contractual obligations (in relation hereto see section X) on the part of B+S.

 

X. Liability

Claims of any nature for compensation which fall within and outside of the scope of liability for defects, which are based on late performance or the inability to give performance, the provision of inaccurate advice, any default in the execution of the agreement, an infringement of any contractual obligations, any unauthorised conduct or any other legal grounds, and in particular also in the event of damage which is not caused to the subject-matter of the delivery – shall be excluded, save in the event of intent or gross negligence on the part of B+S or the infringement of material contractual obligations. Material contractual obligations are those obligations which in the first instance make it possible properly to execute the agreement and on compliance with which the Client may duly rely.

Liability for the gross negligence of the agents of B+S, to the extent that these are not management staff, shall be limited to compensation for normally foreseeable damage. In the event of an infringement of material contractual obligations, liability shall be likewise limited to compensation for normally foreseeable damage, if there is no intent or gross negligence on the part of B+S.

The limitations on liability set out above shall not apply if liability is incurred in accordance with the Produkthaftungsgesetz (Product Liability Act). They shall further not apply in the case of death, physical injury or the impairment of health or when B+S has given a warranty as to properties.

 

XI. Retention of title

B+S shall retain title to the delivered products until it has received full payment of all of the sums due to it in the context of its commercial relationship with the Client. Payment shall not be made with discharging effect until the amount has been received in full by B+S.

If the goods delivered by B+S are incorporated into, combined with or mixed with goods which constitute the property of third parties, B+S shall have co-ownership of the new item or the mixed asset on the basis of the ratio between the value of the goods in which it has retained title and the value of the other goods on the date of such incorporation, combination or mixing. Should the Client acquire sole ownership of the new item, it hereby assigns co-ownership in the new item to B+S on the basis of the ratio between the invoice value of the goods in which B+S has retained ownership and the value of the other goods on the date of such incorporation, combination or mixing and shall safeguard such goods for B+S with the care of a prudent businessman. The Client shall only be entitled subsequently to sell such goods in the ordinary course of business and only if the payment due from the subsequent sale is assigned to B+S. The Contractor hereby assigns to B+S all claims arising from the subsequent sale, irrespective of whether the subsequent sale occurs before or after the incorporation into or combination or mixing of the goods in which title has been retained with other goods. B+S accepts such assignment.

The value of the goods in which title is retained shall be the invoice amount plus a security premium of 10%, which however shall not be applied to the extent that the rights of third parties are enforceable against it. In the event of a subsequent sale of the goods after their incorporation, combination or mixing, or the subsequent sale of the new item which has come into being as a result of the incorporation, combination or mixing, the entitlement to receive payment from the customer of the Client in the sum of the invoice amount of the incorporated, combined or mixed goods, or in the sum of the amount which corresponds to the share of B+S in the ownership only, should such amount be less, shall be assigned. This provision shall also apply in the event of a sale after the goods have become an essential element of another item after their incorporation into or their combination or mixing with other items which do not belong to B+S.

The Client shall be authorised by B+S to collect the assigned sums which are due. B+S may revoke this authorisation if the Client does not fulfil the contractual obligations owed by it to B+S. The costs of collection shall be borne by the Client. The Client must immediately notify any mortgage or any other encumbrance of the rights of B+S. The Client shall be prohibited from granting any mortgage over the goods in which title is retained or from transferring the goods by way of security, as it shall be prohibited from entering into an assignment of claims or an assignment without the agreement of B+S in the context of a factoring. Should the value of the security granted exceed the value of the sums payable to B+S by more than 10% in total, B+S shall be obliged at the request of the Client to release the security of its choice. With repayment of the sum due the ownership of the goods in which title is retained and the assigned entitlements to payment shall be transferred to the Client.


XII. Data protection

B+S shall collect, process and use the personal data of the Client and all of the data required for the execution of the agreement through automated processes.

Moreover B+S shall observe all of the provisions of the German Datenschutzgesetz (Data Protection Act) and the corresponding legal provisions.


XIII. Archiving and storage of products

Products which belong to the Client, and 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 hand-over of the end-product to B+S or its agents. Should the items referred to above be insured, in the absence of any agreement in relation hereto the Client must itself bear responsibility for this.

The Client shall be obliged to collect remaining materials from any location at which they are located. Should it fail to do so within a reasonable period from the date on which the agreement comes to an end, B+S shall be entitled to store such remaining materials at the expense of the Client or to dispose of them at the expense of the Client.

 

XIV. Place of performance and place of jurisdiction

The place of performance for all contractual obligations shall be Hamburg. The place of jurisdiction for any disputes with commercial counterparties, legal persons incorporated in accordance with public law or with persons who do not have a general address for service within Germany shall be Hamburg. B+S however reserves the right to instigate proceedings at the court which has jurisdiction in the location of the registered office of the Client.

German law shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Should any individual provisions of these Terms & Conditions be or become invalid, the validity of the remaining provisions and of the agreement shall not be affected thereby.