GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (hereinafter referred to as “GTC”) apply exclusively and to all contracts and the general business relationship between TYLERS AGENCY GmbH (hereinafter referred to as “Contractor”) and its contractual partners (hereinafter referred to as “Client”). The Client’s consent to the validity of these GTC is expressed by the placement of the order with the Contractor, unless the Client explicitly informs the Contractor of his lack of consent when placing the order. In the event of changes to these General Terms and Conditions, the Contractor shall send the Client a copy of the currently valid version without being requested to do so. The Contractor shall not recognize the Client’s General Terms and Conditions unless otherwise agreed in writing. If the Client’s terms and conditions of business contain provisions on which the following General Terms and Conditions of Business are silent, the relevant dispositive law shall apply, but not a deviating condition of the Client. These GTC shall also apply if the Contractor performs the service to the Client without reservation in the knowledge of terms and conditions of the Client that conflict with or deviate from these GTC.
2. FORMATION OF THE CONTRACT, SUBJECT MATTER OF THE CONTRACT, TERM OF THE CONTRACT
General information on the Contractor’s service portfolio shall be provided to the Client without obligation. If the Client prepares an offer specifically tailored to the Contractor (hereinafter referred to as “binding offer”), the contract shall be concluded upon the Client placing the corresponding order. If the order deviates from the binding offer, the order shall constitute a new offer. Contracts must be in writing, whereby fax or e-mail shall suffice. Verbal subsidiary agreements or amendments to the contract must be confirmed in writing, whereby fax or e-mail shall suffice. The contract runs until the complete performance of the service, unless otherwise contractually agreed.
3. APPLICABLE PRICES
The Contractor shall be bound by the prices stated in the binding offer for a period of 3 months. If the placing of the order is not based on a binding offer of the Contractor, the prices shall be calculated according to the Contractor’s price list valid at the time, which shall be sent to the Client upon request. All prices are in Euro and do not include the statutory value added tax at the applicable rate, unless an express agreement to the contrary has been made.
4. RIGHTS AND OBLIGATIONS OF THE CONTRACTING PARTIES
The Contractor’s services shall be provided to the extent contractually agreed with the Client. The Client shall be obliged to support the Contractor with any cooperation required for the trouble-free performance of the service by the Contractor. It shall provide the Contractor with all data, documents and other information required for the performance of the contract with reasonable advance notice. The Principal shall carefully check the contractual conformity of the service provided and pay for the service. Any changes to the order made after the order has been placed at the request of the Client shall be at the Client’s expense. The Contractor shall be entitled to process material of average type and quality, unless an express agreement has been made in this respect. Before passing on the work produced by the Contractor to third parties, the Client shall be obliged to check it carefully for defects, even if corrections or reference samples have been sent to him beforehand. If one contractual partner fails to meet its obligations to cooperate with the other, the other contractual partner shall be released from its obligation to perform in this respect. If the contractual partner concerned nevertheless performs, the contractual partner shall be liable for any additional expenses incurred.
Binding delivery dates and delivery times require an express agreement. If the customer requests changes to the scope of the order after the order has been placed, which affect the production time, the delivery time shall be extended accordingly. The same shall apply if the delivery time is exceeded for reasons for which the Client is responsible. Delivery dates promised in offers shall only be binding for the Contractor for a maximum of 3 months from the date of the offer. All deliveries shall be ex manufacturing plant. Shipment from the factory shall be at the risk of the Client. Unless he gives special instructions, the Contractor shall select the mode of shipment at his reasonable discretion. Transport insurance shall only be taken out by the Contractor on the express instruction of the Client and at the Client’s expense. The delivery period shall be interrupted for the duration of the examination of proofs, sample sets, production samples, films, photo prints, etc. by the Client, namely from the day of dispatch to the Client until the day of receipt of the Client’s statement.
6. REMUNERATION AND PAYMENT MODALITIES
The Contractor shall invoice the Client for services rendered on the basis of the contractual conditions. Objections to the amount of the invoice must be raised by the Customer within 10 days of receipt of the invoice and must be accompanied by all supporting documents enclosed with the invoice. After expiry of this period, the invoice shall be deemed to have been accepted by the Principal both in terms of the reason and the amount. The Principal shall be specifically informed on the invoice of the significance of this deadline and the consequences of its failure to be met. If the Purchaser does not act on his own behalf but as a representative for another person, he shall be liable to the Contractor, at his option, in addition to the person represented, as joint and several debtor for the entire invoice amount, provided that he is a fully qualified merchant within the meaning of the German Commercial Code or that an express and separate declaration to this effect has been made. Final invoice amounts show the statutory value added tax and are due for payment within 10 days after receipt of the invoice by bank transfer and without deduction. In the case of final invoice amounts of up to EUR 100, the Contractor may demand immediate cash payment upon delivery. A cash discount is excluded in any case. If the processing of an order extends over a period longer than 3 months, the Contractor shall be entitled to issue monthly partial invoices corresponding to the scope of services rendered up to the date of invoicing. If the Client complains that the partial invoice issued does not correspond to the scope of services provided to date, the Client shall bear the burden of proof. If the Contractor has to perform the contractually agreed service at a location other than the Contractor’s place of business, the Contractor shall invoice the Client separately for travel costs, expenses and, if applicable, overnight accommodation costs. The Client may only offset claims of the Contractor against claims of the Contractor that are undisputed or have been established by a court of law. A Principal who is a fully qualified merchant within the meaning of the German Commercial Code shall not be entitled to rights to refuse performance, rights of retention or the commercial right of retention pursuant to Section 369 of the German Commercial Code unless the above rights are not disputed by the Contractor or have already been established by a final court decision.
In the event of default in payment, interest on arrears shall be paid at a rate of 8% above the respective base interest rate of the Deutsche Bundesbank. The Contractor reserves the right to claim further damages. In the event of default of acceptance on the part of the Client, the Contractor shall be entitled to the rights under § 326 BGB (German Civil Code) in addition to the statutory rights. Instead of withdrawing from the contract as a whole, the Contractor may also withdraw from the contract in part only and claim damages with respect to the other part. If the Client does not accept the work within a reasonable period of time after notification of completion or in the case of notified dispatch, or if dispatch is impossible for a longer period of time due to circumstances for which the Contractor is not responsible, the Contractor shall be entitled to store the delivery itself at the risk and expense of the Client.
If the Contractor has to provide services for which acceptance is to be declared according to the contract, the Contract Partner shall declare acceptance within a reasonable period of time if there are no significant defects. The Principal shall check the acceptance capability at the latest upon delivery of the services. If an inspection of the ability to accept ends without a list of defects being drawn up, the Principal shall declare acceptance in writing. If this is not done within a reasonable period of time, the work results shall be deemed to have been tacitly accepted at the same time as the end of the inspection. A productive use of the created services of more than 2 weeks shall otherwise be deemed to be acceptance at any time, provided that the use is not used for troubleshooting or error correction.
If the service is not provided in accordance with the contract or is defective and if the Contractor is responsible for this, the Client may initially only demand that the Contractor rectify the defect or provide a replacement delivery to the extent of the defect on account of a wholly or partially defective work. The Contractor shall remedy the contractual performance without additional costs for the Client within a reasonable period of time. A prerequisite for this is a prior complaint by the Principal, which in the case of obvious defects must be made within 3 days of receipt of the service at the latest, and in the case of defects which are in any case recognizable within 2 weeks of receipt of the service at the latest. Hidden defects must be notified to the Contractor in writing immediately after their discovery. In total, the Contractor shall have the right to rectify defects twice.
10. SKETCHES, DESIGNS, PROOFS, SAMPLES, GALLEY PROOFS
Sketches, drafts, proofs and samples may also be invoiced without an order being placed for them, provided that their production is necessary for the proper execution of the order. Proofs shall only be supplied on request. They shall be carefully checked by the Client for typesetting and other errors and returned to the Contractor declared ready for printing. The Contractor shall no longer be required to check the galley proof declared ready for printing by the Client. If the sending of a proof is not requested, the liability for typesetting errors shall be limited to intent and gross negligence. With regard to a legal representative or vicarious agent of the Contractor, the Contractor’s liability in these cases shall be limited to gross negligence. If the Client is a fully qualified merchant, the Contractor shall only be liable in all of the aforementioned cases for its own intent, and for its employees within the scope of § 831 of the German Civil Code (BGB).
11. INTELLECTUAL PROPERTY RIGHTS
The Contractor shall be the sole author of all performance results to be created under the contract. The Client shall only obtain rights of use and exploitation to the performance results with full remuneration and only to the extent that this is contractually agreed. The Principal shall grant the Contractor non-exclusive rights of use, reproduction and publication of any copyrights, trademarks and company logos of the Principal which are necessary for the trouble-free performance of the contract, such as in particular, but not limited to, the right to store, process, reproduce, publish, distribute and make available to the public. The Client assures the Contractor that it is in possession of these rights. The Client shall be solely responsible for verifying the right to reproduce artwork submitted to the Contractor. If the Client provides the Contractor with working materials, templates or other objects for the processing of an order which are encumbered with the rights of third parties, the Client shall indemnify the Contractor in full and upon first request for any infringement of these rights; in the event of an announcement of a claim for injunctive relief or damages by a third party, the Contractor shall be entitled to demand security from the Client in the corresponding amount of the expected claim. All documents, records and other objects which the Principal has transferred to the Contractor on the basis of support and cooperation obligations or voluntarily in analog or digital form on the occasion of the execution of an order (materials) shall be reclaimed by the Principal from the Contractor within 2 weeks after completion of the order, irrespective of whether they are the Principal’s own materials or those of third parties. If this is not done, the Contractor shall not assume any liability.
12. INSURANCE, ARCHIVING
The Client shall be responsible for insuring the manuscripts, originals, samples, papers or other items provided to the Contractor against theft, fire, water or any other risk. Archiving and storage of data shall only be carried out after prior agreement and only at the risk of the Client. Film typesetting documents, clear text, etc., which are not included in the delivery, may be archived for up to 6 months at the risk of the Client, provided that the Client expressly requests this.
13. LIABILITY, FORCE MAJEURE
For all claims of the Parties against each other which are not claims for performance or serve the fulfillment of contractual obligations, in particular for claims for damages or reimbursement of expenses, from self-execution, termination or reversal after rescission, irrespective of the question of a breach of duty, the degree of fault or the basis of the claim, the Contractor shall only be liable for damage caused intentionally and by gross negligence, but not for the slightly negligent breach of insignificant obligations arising from the contractual relationship. The same shall apply to liability for damage caused by employees, representatives and vicarious agents. Furthermore, if the Principal is a fully qualified merchant, the Contractor shall not be liable for consequential and indirect damages, not for loss of profit, not for loss of orders or loss of customers, unless the event causing the damage is based on an intentional or grossly negligent breach of duty by the Contractor or a legal representative or vicarious agent of the Contractor; this shall also apply to damages arising from the breach of duties during contract negotiations. Any of the above limitations of liability shall not apply to personal injury, to claims under the Product Liability Act, to the case of fraudulent concealment of a defect or to the breach of material contractual obligations. In all cases, liability shall be limited to the foreseeable, typically occurring damage, unless there are compelling legal reasons to the contrary. In all other respects, the statutory provisions shall remain unaffected. Operational disruptions – both in our own operations and in those of third parties on which production and transport depend – caused by war, strike, lockout, riot, lack of energy, failure of means of transport, work restrictions as well as in cases of force majeure shall release us from compliance with the agreed delivery times and prices, but shall not entitle us to terminate the contractual relationship. The principles regarding the discontinuation of the basis of the contract shall remain unaffected.
Subsidiary agreements, amendments, supplements as well as the cancellation of these GTC or the individual order must be made in writing. A waiver of the written form is only possible in writing. Should any provision of these GTC be or become invalid, the validity of the remaining contractual provisions shall remain unaffected. Instead, the contracting parties undertake to immediately replace the ineffective provision with a new legally effective provision that comes as close as possible to the economic objective intended by the ineffective provision. The place of performance and jurisdiction shall be Frankfurt am Main, Germany, provided that the contracting parties are fully qualified merchants within the meaning of the German Commercial Code (Handelsgesetzbuch) and the underlying legal transaction was undertaken in the exercise of their commercial business. The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).