maxmedia | General Terms and Conditions
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General Terms and Conditions

I. Scope/Conclusion of the Contract

Contracts are concluded exclusively on the basis of the following terms of the company, maxmedia GmbH, a product communications agency, hereinafter referred to as „contractor“ and the client, hereinafter referred to as „principal“. Deviating regulations require for their validity the written consent of the contractor.

II. Prices

1. The prices mentioned in the contractor’s offer are valid, under the reservation that the order dates on which the offer was tendered remain unchanged, and four months at the most after receipt of the offer by the principal. For orders that are supplied to third parties, the entity placing the order is the valid principal, so long as no other express agreement has been made. The contractor’s prices do not include VAT and are valid ex works. They include packing, freight, postage, insurance and other shipping costs.

2. Subsequent changes made by order of the principal, including additional expenditure caused by such subsequent changes, are charged to the principal.

3. Sketches, drafts, specimen typesetting, specimen sheets, proofs, changes to supplied/transferred data and similar preparatory work brought about at the inducement of the principal, are invoiced.

III. Payment

1. Payment must be made immediately after receipt of the invoice, and at the latest 14 days from the invoice date, strictly net. Any cash discount agreement does not relate to freight, postage, insurance or other shipping costs. The invoice is issued on the day of delivery, partial delivery or delivery readiness (debt to be collected at the debtor’s residence, default in acceptance).

2. Appropriate advance payment can be charged for unusual preliminary work.

3. The principal can offset claims by the contractor only with an uncontested or legally established claim or exercise a lien, if it is neither a merchant who has been entered as such in the commercial register nor a legal person under public law nor a public fund.

4. If, after the contract has been concluded, it is recognisable that the fulfilment of the payment claim is at risk due to the deficient performance of the principal, the contractor can demand payment in advance, withhold goods that have not been delivered and halt further work. The contractor is also entitled to these rights, if the principal is late in paying for deliveries that are based on the same legal relationship. Section 321 para 2 German Civil Code (BGB) remains unaffected. In the case of delayed payment, late payment interest in the amount of 8% above the base rate must be paid. The assertion of a further claim for damages caused by delay in payment is not excluded.

5. The contractor is entitled to a lien on the print and stamp templates, manuscripts, raw materials and other objects supplied by the principal up until complete fulfilment of all of the demands from the business relationship, in accordance with section 369 of the German Commercial Code (HGB), in so far as it is a merchant.

IV. Delivery

1. Should the goods be sent, the risk transfers to the principal, as soon as the consignment has been handed over to the person carrying out the transportation.

2. Delivery dates are valid only if they are confirmed expressly by the contractor. If the contract is concluded in writing, confirmation of the delivery date also requires the written form.

3. If the contractor delays the service, the principal can only exercise the rights in section 323 of the German Civil Code (BGB), if the contractor is responsible for the delay. A change in the burden of proof is not associated with this regulation.

4. Disruption to business, such as strikes, lock-outs and all other instances of force majeure, both in the contractor’s business and also in that of one of its suppliers, entitles the principal to cancel the contract only if it cannot be expected to wait longer; otherwise, the agreed delivery period is extended for the duration of the delay. A cancellation is, however, possible four weeks at the earliest after the commencement of the business disruption described above. In these instances, the contractor’s liability is excluded.

V. Retention of title

1. The contractor reserves the right to ownership of the goods it has supplied until all payments arising from the business relationship with the principal have been made. The retention of title also extends to the recognised balance, in so far as the contractor enters claims on the principal in the current invoice (current account retention).

2. The principal is entitled to resale only in accordance with normal business. The principal assigns its claim for resale to the contractor herewith. The contractor accepts the transfer herewith.

In the case of the processing or finishing of goods supplied by and being the property of the contractor, the contractor is considered to be the manufacturer, in accordance with section 950 of the German Civil Code (BGB), and retains ownership of the products at every point of the finishing process. If third parties are involved in the processing or finishing, the contractor is limited to a co-ownership share in the amount of the invoice value of the goods subject to retention of title. Property purchased in such a way is accepted as property subject to retention of title.

3. If the value of the securities exceeds the value of the claim by 20% in total, the contractor is obligated, at the request of the principal or one of the third parties disadvantaged by the contractor’s over-collateralisation, to release the securities at the contractor’s option.

VI. Objections/Warranties

1. The principal must immediately and in every instance check that goods, as well as preliminary and provisional products, are in accordance with the contract. The risk of errors transfers to the principal with the declaration for printing/declaration for production provided it does not concern errors that arose or could be recognised from the final production process in the declaration for printing/declaration for production. The same applies to all other of the principal’s declarations for clearance.

2. If the principal is a merchant who has been entered as such in the commercial register or a legal person under public law, then obvious defects must be indicated in writing within a period of one week of receipt of the goods, and hidden defects within a period of one week of discovery. The assertion of a warranty claim is excluded in the case of delayed notification.

3. In the case of justified complaints, the contractor is obligated and entitled to choose the option of improvements being made or replacements being supplied. If the contractor does not fulfil this obligation within a reasonable period or the improvements fail despite repeated attempts, the principal can demand a fee cut (reduction) or the rescission of the contract (withdrawal).
4. Defects in part of the goods supplied do not entitle the principal to raise an objection about the entire consignment, unless the partial consignment is of no interest to the principal.

5. Complaints cannot be made about small deviations from the original in colour reproductions in any of the manufacturing processes. This also applies to the comparison between other templates (e.g. digital proofs, proofs) and the end-product.

6. Moreover, liability for defects, which do not or only slightly impair the value or serviceability, is excluded.

7. The contractor is liable for deviations in the composition of the materials used only in the amount of the value of the order.

8. Deliveries (including data carriers, transferred data) made by the principal or one of its third party sub-contractors are not subject to an inspection obligation on the part of the contractor. This does not apply to data that can obviously not be processed or are unreadable. In the case of data transfers, the principal must use computer virus protection programs of the latest technical standard before sending. The principal is solely responsible for data security. The contractor is entitled to make one copy.

9. Objections cannot be raised with regard to deliveries that are over or under by up to 10% of the run ordered. The quantity delivered is charged. Deliveries of special paper productions of under 1,000 kg is increased by 20%, and under 2,000 kg by 15 %.

VII. Liability

1. Claims for compensation and reimbursement of expenses on the part of the principal, on whatever legal basis and including any tort claims, are excluded.

2. This liability exclusion does not apply to the contractor or its vicarious agents

– in the case of damage caused by intentional or gross negligence;
– in the case of culpable injury to the life, body or health of the principal – in the case of deceitfully concealed defects and an assumed guarantee of the quality of the goods.

3. In the case of the loss or destruction of data or objects that are the property of the principal, as a consequence of theft, fire, ingress of water etc., the contractor is liable only up to the amount of the usual fire and break-in / tap water damage insurance, provided that it or its vicarious agents have not been intentionally or grossly negligent. For damage that occurs to the principal by reason of tort, or for damage on the occasion of a fault of the contractor’s on conclusion of the contract and for damage from the neglect of a secondary contractual obligation, the contractor is liable to pay monetary compensation only if it or its vicarious agents have been intentionally or grossly negligent.

4. Claims for compensation by the principal, on whatever legal basis, in particular due to breach of obligations and by reason of tort, are excluded. In particular, the contractor does not accept any liability for data loss, if the principal has not carried out any data protection before use, or the data loss is caused by the principal or a third party through a change in software and/or hardware. If the purchaser is a consumer, the claim for damages is limited to the restoration of data.

5. The contractor is liable only if the damage is covered by its public liability insurance.

VIII. Limitation period

1. If the principal is a consumer within the meaning of the law, warranty claims are limited to two years. The limitation period begins with the delivery of the goods, in accordance with clause IV.

2. If the principal is a merchant who has been entered as such in the commercial register or a legal person under public law, the principal’s warranty and compensation claims are limited to a year beginning with the delivery of the goods (clauses VI and VII), with the exception of the cases mentioned in clause VII, 2.

IX. Copyright, user rights and exploitation rights

1. In the case of project assignments, all works listed, in particular concepts and creations are intended for single use only within the dissemination area. Other uses and exploitation, in particular abroad, are only possible by special agreement and the arrangement of additional fees.

2. A use fee is forthcoming, independent of the design fee, in accordance with spatial (local to international), temporal (3 months to unlimited) and content (simple to sector-exclusive) use values.

3. All rights that accrue to data material, digital data material and texts, fine artwork, photos, print films, punch templates, embossers etc., in producing concepts and creations, which are used in performing the service, remain the property of the contractor. The same applies to the online transfer of data material to the principal.

4. Data material that is ordered by the contractor for the concept and not delivered to the principal is not a component of the service to be provided to the principal. The publication of data is only possible on payment of further fees.

5. All work carried out by the contractor, in particular concepts and creations, is subject to expenditure fees in the case of competition presentations and project assignments. This does not include copyright or user rights. Copyright or user rights are charged according to market significance, scope, content and the dissemination of the activities of the particular product or service.

6. All work carried out by the contractor is available to it without restriction for its own PR, promotional and other purposes in digital form, printed and as documentation.

7. Illegal subsequent and further use that occurs without the prior consent of the contractor as copyright holder is charged a minimum supplement of 100% of the agreed fee. Claims for compensation remain unaffected.

8. The principal is solely responsible if, through the performance of its commission, the rights of third parties, in particular copyright, are breached. The principal must release the contractor from all claims by third parties due to such a breach of rights.

9. In the case of non-payment or late payment, the contractor reserves the right to prohibit the publication of its intellectual property (designs, images, fine artworks, data etc.) or its use of any kind (e.g. print products or digital use) and, if necessary, withdraw it from the marketplace.

X. Archiving

Products due to the principal, in particular data and data carriers, are archived only after express agreement and in return for special fees from the time the end-product is transferred to the principal or its vicarious agents. If the aforementioned objects should be insured, the principal must itself take care of this in the absence of an agreement.

XI. Place of performance and court of jurisdiction validity

1. If the principal is a merchant who has been entered as such in the commercial register or a legal person under public law or a public fund or does not have an in-country general court of jurisdiction, the place of performance and court of jurisdiction for all disputes arising from the contractual relationship, including cheque, exchange and document processes, is the contractor’s headquarters. German law applies to the contractual relationship. The UN Convention of Contracts for the International Sale of Goods is excluded.

2. The ineffectiveness of one or several terms does not affect the effectiveness of the remaining terms.

– Date: November 2010 –

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