The present business terms and conditions apply to all assigned and future orders of the PPS GmbH (hereinafter referred to as contractor). Deviating terms of the client which are not expressly accepted by the contractor in writing, are hereby expressly objected. For orders with delivery to third parties, the person who placed the order is deemed the client, unless other agreements have been explicitly made.
1 Prices, Additional Costs
1.1 Prices are quoted in Euro and include VAT within the Federal Republic of Germany. 1.2 Prices apply ex works, are subject to alterations and apply for no longer than 2 months after receipt of the client’s offer. Prices stated in the contractor’s offer shall apply with the provision that the order data underlying the submittal of quotation shall remain unchanged. 1.3 Should the completion of an order exceed a period of 4 months, the contractor shall be entitled to adjust the prices stated in the order confirmation if costs (material, wages and salaries) on which its calculation is based have increased between conclusion of the contract and acceptance. 1.4 If goods were shipped at the client’s request to a different address than the one stated in the order confirmation, the contractor can charge additional handling costs. 1.5 If an accelerated delivery is agreed upon, the contractor is entitled to charge a surcharge in the event of arising overtime and additional expenses. 1.6 If the order processing is suspended temporarily at the client’s request, the contractor is entitled to payment for work already performed, particularly ordered materials and other additional charges including storage. 1.7 Typographical and clerical errors and/or errors in the contractor’s offers and any other correspondence as well as printed material excepted. The contractor is not liable therefor.
2 Terms of Payment
2.1 In the case of not meaningful or negative information (evaluation by PPS): prepayment. Otherwise 10 days net from the date of invoice. Any discount agreement that may exist does not apply to freight, postage, insurance, and other shipping costs. If the credit period is exceeded, the contractor will charge interest for default in the amount of 2% above the respective discount rate of the bank. With transfers and cheques, the date upon which we receive the advice of credit, qualifies as the date of payment receipt. Payments by bill of exchange or cheque in combination with a draft are principally not possible. For larger orders, either advanced payments or installments correspondent to the work performed are to be made.
2.2 If the customer defaults on his payment obligation and should the contractor receive at the same time written information showing the credit-unworthiness of the client, further if the client does not cash a cheque, if he does not meet his payment obligations, if a deterioration in his assets has occurred, if a bankruptcy proceeding or any judicial or extra-judicial settlement proceedings have been filed for, the contractor shall be entitled to charge the client for work already performed and disbursed materials and call the claim due immediately.
The contractor retains in the above-mentioned cases the right to cease further work on current orders of the client until the client has rendered counter-performance or provided security for it. Should the client delay contemporaneous performance or provision of security, the contractor shall also be entitled to withdraw from the contract. Provided that the client once paid an invoice resulting from a call-off order, which delays the payment stated in this invoice for more than 10 days, the contractor is entitled to deliver further call-offs only on advance payment. Furthermore, in such cases the contractor is entitled to charge for work already performed, to make the claims fall due immediately, and to execute delivery after safe receipt of the corresponding amount.
2.3 The contractor is entitled to set off due claims which belong to the affiliated companies vis-à-vis the contractor. Furthermore, with the authorisation issued to it, the contractor is entitled against the claim of the client to set off with all claims of the remaining group companies. This also applies if maturities differ and one party has agreed upon payment in cash and the other party upon payment by bill of exchange or other form of payment for processing only. The client can only off-set with those claims that are undisputed or have been legally determined.
2.4 With extraordinary preliminary performance, a reasonable advance payment can be demanded.
3 Retention of Title
3.1 The goods delivered remain property of the contractor up until payment of all its claims from the business relationship – irrespective of the legal basis – and up until all bills of exchange or cheques given to the contractor in payment have been cashed.
3.2 All claims of the customer from a resale of the reserved goods are already now fully assigned to the contractor as a precaution, who in turn accepts this assignment. If the client includes claims form resales in an existing current account relationship with a third party, the respective assignable balance shall be deemed assigned up to the amount of the contractor’s claims.
3.3 The contractor irrevocably authorises the client to collect the claims assigned to the contractor for his account in its own name. Upon request of the contractor, the client is obliged to disclose names and addresses of third-party debtors and the amount of all claims against the same.
3.4 A lien is granted upon handover on all raw materials of any kind delivered by the client to secure all the contractor’s current and future claims arising from the delivery of goods.
3.5 If the value of the contractor’s existing securities exceeds its claims by more than 20%,
the contractor is obliged upon request of the client insofar to release securities.
4 Risk of Loss
4.1 The shipping takes place for the account and at risk of the client. The risk is transferred to the client as soon as the consignment has been handed over to the person or warehouse performing the transport.
4.2 If the shipping is delayed by the client’s request, the risk is transferred to him together with the notification of readiness for dispatch. The contractor is entitled to charge the client storage fees.
4.3 The dispatch modalities and route are left to the choice of the contractor if not otherwise agreed upon.
4.4 Transport insurances are taken out by the contractor only upon the client’s express instruction ad at the client’s expense.
5 Period of Delivery
5.1 Any delivery dates and deadlines indicated by the contractor are intended as approximate time designations. For the duration of the examination of the press proof, production samples etc. by the client, the delivery period is interrupted respectively, namely from the day of dispatch to the client until the day of receipt of his statement. Should the client demand changes to the order following the order confirmation, which influence the production time, a new delivery period shall commence upon confirmation of such changes.
5.2 In the case of force majeure and any other unforeseeable, extraordinary circumstances not due to the fault of the contractor, e.g. war, material procurement difficulties, operational breakdowns, strikes, lockouts, riots, lack of means of transport, regulatory interventions, power supply difficulties, etc. – also if they occur at the primary suppliers – the delivery deadline shall be extended to reasonable scope, if the contractor is hindered in the fulfilment of its obligations in time. Should the delivery or performance become impossible or unreasonable due to the above-mentioned circumstance, the contractor shall be freed from the delivery obligation. If the delay in delivery last longer than 3 months, the client is entitled to withdraw from the contract. If the delivery period is extended or if the contractor is released from his delivery obligation, the client cannot derive any claims for damages from it. The contractor may only invoke the circumstances mentioned, if he informs the client immediately.
6 Default in Taking Delivery
6.1 If the client is in default with acceptance, the supplier may assert the rights under § 326 BGB (German Civil Code).
6.2 If the client does not take the delivery within an appropriate period following notification of completion or promptly upon notified shipping, or if shipping is impossible for a longer period due to circumstance for which the supplier is not responsible, the supplier is entitled to either lay the goods in stock by himself or to store the same at a carrier for the account and at risk of the client.
7.1 Notification of defects and other complaints based on obvious defects must be lodged immediately, at the latest within a preclusion period of one week after receipt of the goods by simultaneous consignment of the rejected goods. Hidden deficiencies, which cannot be found after immediate examination, may be claimed only against the supplier, if the notification of defect reaches the client within 6 months at the time of acceptance.
7.2 The client’s duty to examine the delivered goods shall also apply when output samples have been dispatched.
7.3 Defects in a part of the delivered goods shall not entitle complaint about the whole delivery, unless the part-delivery is demonstrably of no interest to the client.
7.4 The supplier in its own discretion at first has the right of rectification or replacement delivery. The client may demand rescission of the contract or reduction in payment only after failure of rectification or replacement delivery.
7.5 Excess deliveries or short deliveries of up to 10% of the ordered quantity may not be objected to complaint. The delivered quantity will be invoiced.
7.6 Slight deviations in the printing ink compared to the colour sample or the ready for press template, conditioned by the differences in the material used and the processing procedure respectively the manufacturing process as well as the usage of colours, which are no standard colours, do not entitle on complaint of the consignment.
7.7 Variations of punching, which leads to different distances of the printed motives to the card edges from card to card, do not entitle on complaint of the consignment.
7.8 The contractor is liable for deviations in the state of the materials used only up to the amount of his own claims against the respective subcontractor. In such a case the contractor is exempt from its liability if he/she assigns his/her claims against the subcontractor to the client. The contractor is liable if claims against the subcontractor do not exist through the fault of the contractor or if such claims are not enforceable.
7.9 Slight deviations in the state of the paper, cardboard, plastic material and other materials sourced by the contractor cannot be complained about.
7.10 In the case of coloured reproductions of all manufacturing processes, complaints are also not accepted in case of slight deviations from the original. The same applies to the comparison between press proofs and editions print.
7.11 Items (including data media) delivered by the client or by a third party working on its behalf are not subjected to an obligatory inspection by the contractor.
7.12 Printers, which are sent to the supplier during the warranty period or even after the warranty period for purposes of repair, must be sent by the customer at his/her expense.
The return dispatch takes place at the expense of the supplier during the warranty period, and at the expense of the customer after the warranty period.
8.1 The contractor is principally only liable, if he caused the damages deliberately or by grossly negligent action.
8.2 In other respects, the following regulations apply to the liability of the contractor due to negligence:
Claims for damages as compensation for consequential harm caused by a defect, from positive breach of contract, culpa in contrahendo and tort, are excluded. If the contract includes refining works or further processing of print products, the contractor is not liable for any impairment thus caused of the product to be refined or further processed. Claims for damages due to impossibility and default are limited to the amount of the contract value (personal contribution excluding advance payment and material).
8.3 The above limitations of liability apply to the same extent to the contractor’s assistants and vicarious agents.
8.4 In commercial dealings the contractor is always liable only for damages, which are caused deliberately or by grossly negligent action.
8.5 The above limitations of liability do not apply in the event of a culpable breach against essential contractual obligations, if the fulfilment of the purpose of the contract is endangered, in the absence of assured properties, as well as in cases of mandatory liability under the product liability act.
8.6 If print data is provided to the contractor by the client, the customer is solely responsible for the content of the card. The contractor assumes no liability whether and to what extent the client, through the commissioned printing, fulfills his legal requirements that apply to him.
9 Material Procured by The Client
9.1 Irrespective of which type, it is to be delivered to the contractor free domicile. The client commits itself to deliver 5% more than agreed on to cover maculation.
9.2 The receipt shall be confirmed without acceptance of responsibility for the correctness of the quantity referred to as delivered. In case of larger items, expenses involving reckoning or examination by weight as well as storage expenses are to be refunded.
9.3 In the case of provision of paper, card board or plastic material by the client, packing material and waste caused by unavoidable loss in the printing set-ups and photographic prints, through bleed, punching and similar, remain with the contractor.
9.4 The contractor may reject paper or other materials provided by the client, to the extent where these appear to be unsuitable for the performance of the order. Additional costs arising from the materials turning out as unsuitable only during the production, may be invoiced separately. This shall not be valid if the contractor may have convinced itself of the material’s unsuitability without excessive delay. In this case, the client will not be debited with additional costs. If the output is adversely affected by the material’s unsuitability, for which the client is responsible for, insofar the contractor assumes no liability.
10 Safekeeping and Pledge
10.1 Safekeeping and storing of raw materials, half-finishes and finished goods, like print orders, external papers, etc. will only take place after prior agreement of the client and it is reimbursed separately. This also applies particularly for so-called call-off orders. The contractor does not assume liability for damage on stored materials, unless the damage was caused deliberately or by gross negligence.
10.2 If manuscripts, originals, papers, printed material or other items brought in are consigned to the contractor for storage are to be insured against theft, fire, water, or any other risk, the client itself should obtain the insurance.
11 Copyright, Property
11.1 The client is solely responsible for examining the right of reproduction of all artwork masters. The client is solely liable, if rights of third parties, particularly copyrights, are violated. The client shall indemnify the contractor against all claims of third parties.
11.2 All copyrighted rights of use on own sketches, blueprints, originals, films, and suchlike for all procedures and for all usage purposes remain with the contractor, unless expressly agreed otherwise.
11.3 Reprint or reproduction – irrespective of which procedure – is not permissible without the contractor’s consent, also that consignments, which are not object of a copyright or other industrial property protection.
11.4 Printing plates, embossing plates, lithographs, master copies (negatives and slides on film or glass), punches and other custom-made products necessary for production remain property of the contractor.
11.5 The contractor is not obliged to deliver transfers of lithographs and copies of master copies as well as ready to print documents and files to the client.
11.6 The contractor assumes no liability for external printing blocks, manuscripts, and other items, which are not requested by the client within four weeks after the completion of the order.
12 Proofs, Films and Press Proofs, Excess Work
12.1 Proofs and press proofs must be verified on typographical errors and other mistakes and released by the client. Typographical errors will be corrected free of charge. Subsequent changes deviating from the initial artwork master will be charged particularly according to the working hours expended.
12.2 Incoming goods of film and data are principally only proofed in respect of compliance of the client’s technical specifications, i.e. the contractor assumes no responsibility for text and positioning accuracy.
12.3 Press proofs, multiple proofs, sketches, blueprints, trial proofs and samples are invoiced to the client.
12.4 If excess work becomes apparent after the order was given, which cannot be foreseen at conclusion of a contract, the contractor may charge the excess work additionally. This also applies particularly when the manuscript is not legible clearly and good.
13 Printing Errors
13.1 The contractor is not liable for printing errors which the client overlooked in the proofs released by him. Amendments made by telephone require written confirmation.
14 Periodic Processing
14.1 Unless otherwise agreed, contracts for regularly recurring works can be terminated by giving notice at least 3 months before year-end.
15 Place of Performance, Place of Jurisdiction, Effectiveness
15.1 If the client is a registered trader within the meaning of the HGB (German Commercial Code) or does not have a domestic place of general jurisdiction, place of performance and place of jurisdiction is Traunstein for all disputes arising from the contract relationship
including legal proceedings for cheques, bills of exchange and deeds. The contractual relationship is subject to German law. CISG (UN Convention on Contracts for the International Sales of Goods) is excluded.
15.2 Due to possible ineffectiveness of one or several terms the effectiveness of the remaining terms will be inviolate.
15.3 Seat of PPS GmbH is 83346 Bergen, Germany.