I. Field of Application
These General Contract Terms shall apply in principle to all contracts with Assignors concluded by HP Media GmbH regardless of the nature of the assignment. Possible different General Contract Terms of the Assignor shall not be accepted from now on. They may become effective in whole or in part only with the express written agreement of HP Media GmbH.
II. Concluding a Contract
1. The prices and terms of an offer shall be binding for HP Media GmbH for a period of 30 days after the inquirer has received the offer. A prerequisite for this is that the parameters of the assignment, on the basis of which the offer has been drafted, should remain unchanged.
2. Additional costs for packaging, transport, customs duties, insurance and the like shall be owed by the Assignor only provided this has been specified in the offer.
3. By accepting the offer by the Assignor the contract shall be deemed concluded. Data in support of the assignment, different from the offer of HP Media GmbH shall be valid only when they have been reconfirmed by HP Media GmbH.
4. Additional services such as sketches, drafts, sample type setting, sample prints, proof sheets and similar preparatory works shall be paid by the Assignor separately when requested by him. This shall apply also to repeated sample prints and proofs for review and approval of images when they have been requested by the Assignor due to minor deviations from the samples.
5. Subsequent changes in the service content, requested by the Assignor, may be taken into consideration when the pertaining additional costs and more specifically the machine outages caused by this are paid for by the Assignor.
III. Delivery
1. In principle delivery term shall mean the agreed term plus the time the Assignor uses for verifying eventual proofs, production samples, lithographs, etc. This term shall start with the sending of the verified materials and shall end with the arrival of the approval for print at HP Media GmbH.
2. The agreed delivery terms shall become invalid when the Assignor makes subsequent amendments to the contract content.
3. Should the term, agreed and calculated in the manner specified above, be exceeded the Assignor shall specify to HP Media GmbH an appropriate additional term before being able to draw rights from the delay of the delivery.
4. Production interruptions – both at the HP Media GmbH enterprise and at the enterprises of any of its suppliers – such as strikes, lockouts as well as any other force majeure circumstances, shall be added to the delivery term. They shall entitle the Assignor to terminate the contract only when no further waiting can be imposed on him. Termination of the contract shall be possible not earlier than two weeks after the occurrence of the production interruption specified above provided it is still ongoing at the time of termination. Further claims by the Assignor shall be excluded.
5. All samples and sample stamps, manuscripts, raw materials and any other artefacts provided by the Assignor shall remain with HP Media GmbH unless agreed otherwise in each particular case.
6. HP Media GmbH shall be entitled to carry out partial deliveries when the partial delivery is usable by the Assignor within the purpose of the contract, the delivery of the other ordered goods is guaranteed and provided no significant additional costs ensue for the Assignor.
7. The risk of quality deterioration or of loss of the delivered goods shall transfer to the Assignor at the moment the delivery is handed over to the first carrier performing the transport.
IV. Payment Terms
1. Unless agreed otherwise, payments shall be due immediately after the receipt of the invoices by the Assignor and shall be paid without deductions but not before the receipt of the ordered goods. In principle payments shall be made by bank transfer.
2. Discounts and other similar abatements shall be provided only if agreed expressly.
3. When partial or full advance payment has been agreed in the contract, the contract shall enter into force only on the date the payment is received by HP Media GmbH.
4. The Assignor may make deductions from receivables due to HP Media GmbH only on the grounds of an irrefutable or legally established counter-receivable. This shall also apply with respect to the right to hold back payments.
5. The Assignor shall fall automatically into default on his payment on the 15th day after the maturity of the payment request by HP Media GmbH without the need for a specific reminding letter.
6. If it becomes clear after the conclusion of the contract that the execution of a required receivable by HP Media GmbH is threatened due to insufficient solvency of the Assignor, full advance payment may be exacted pursuant to the above provisions. If production has already started in such a case HP Media GmbH may hold back goods that have not yet been dispatched, terminate further work, respectively, until a full payment is made. It shall be deemed that there is a risk for a specific due receivable in the preceding sense when no receivables due to HP Media GmbH are being paid under other transactions between the Assignor and HP Media GmbH.
7. The delivered goods shall remain the property of HP Media GmbH until the full payment of all receivables of HP Media GmbH by the Assignor, and only under the current but also under eventual other transactions. The Assignor shall be entitled to resell the delivered goods only in the course of usual activities complying with the proper procedure. The Assignor shall be obliged to prevent the access of third parties to the goods that are subject to ownership rights and shall inform thereof HP Media GmbH in writing.
V. Claims – Warranty
1. If the parties have agreed that the Assignor shall state readiness for print or if this is required by HP Media GmbH any liability of HP Media GmbH for any mistakes contained in the approved materials shall be excluded. The statement of readiness for print shall make it clear that the Assignor is fully familiar with the verified materials and because of this it has to be in writing. The same shall apply to the proofs, sample prints and the like as well as to requests for amendments which have been communicated after the receipt of the statement of readiness for print.
2. Apparent defects shall be stated in writing to HP Media GmbH within one week after the delivery of the goods. In case of hidden defects the claim term shall be four weeks.
3. Materials supplied for production by the Assignor shall be excluded from any warranty.
4. For colour reproductions insignificant deviations from the proofs and the print circulation, as well as within the circulation shall not be deemed as defects when the margin of plus/minus 15 percent of the saturation values of the dense colours is not exceeded. Proofs, colour laser prints and other simulations of the print image shall never be binding concerning the colours.
5. HP Media GmbH shall be liable for deviations in the characteristics of the input materials only to the extent of the claims to the suppliers of the materials to which it is entitled.
6. Liability for indirect damages as a result of a defect on other legal interests shall be excluded.
7. Deficiencies of a part of the delivered goods shall not present entitlement to reclaim the entire delivery unless the unclaimed part of the delivery is of no interest to the Assignor.
8. Delivered quantities which are up to five percent more or less of the ordered circulation shall not be deemed a deficiency. In any case the actually delivered quantity shall be calculated. For deliveries with inputting paper in a special tailored production the percentage above shall be increased to twenty percent when the entire order weighs under 1 000 kg, to fifteen percent for weight up to 2 000 kg and to ten percent for weight up to 4 000 kg.
VI. Data transfer and archiving
1. The Assignor shall be liable for the provision to HP Media GmbH of the data required for production in the agreed format and in actually readable form.
2. The Assignor shall be responsible, before providing the data, to use protective applications against computer viruses of the newest technical level. Recording the data shall be entirely the responsibility of the Assignor.
3. HP Media GmbH shall be entitled to copy the data in the volume required for implementing the order.
4. HP Media GmbH shall not be obliged to provide to the Assignor intermediate products such as data, lithographs or printing plates required for the production process, unless agreed otherwise.
5. Archiving of the transferred data and the intermediate products specified above shall be done only at the express written assignment to this effect by the Assignor, for which an appropriate fee may be requested, including also the costs for the insurance requested by the Assignor.
VII. Liability
1. Claims for damages suffered and for reimbursement of expenses made by the Assignor due to whatever legal reason shall be excluded.
2. This exclusion of liability shall not apply to damages caused deliberately or due to gross negligence. Besides, it shall not apply in the event of culpable threat to life, personal injury and damage to the health of the Assignor, as well as in case of malevolently suppressed defects, failure to comply with warranties undertaken expressly concerning the characteristics of the goods, respectively, as well as to claims on the grounds of the Product Liability Act.
3. Inasmuch as in principle there is liability of HP Media GmbH, it shall be limited to the amount of the immediate median damage foreseeable in relation to the type of product characteristic for the contract.
VIII. Industrial Property Rights – Copyright
The Assignor shall be solely responsible for possessing unlimited rights to retransfer and process any data, samples, texts and graphic material, provided for the production process and thus shall be liable that the production of the printed products assigned by him shall not violate third persons’ industrial property rights and copyrights. Besides, he shall be liable that the content of the printed products shall not violate the provisions of competition law and good manners. The Assignor shall be obliged to release immediately HP Media GmbH from eventual claims by third parties in this respect or to prevent them at its own expense, respectively.
IX. Periodic Activities
Contracts for periodically recurring services of HP Media GmbH that are not limited in time may be terminated by either party as of the end of any calendar month with a three-month notification.
X. Prescription
The prescription term for mutual claims by the parties of whatever nature shall be reduced to one year. The provisions of the law shall apply to the beginning of the term.
XI. Data Protection
Inasmuch as HP Media GmbH shall be assigned the processing of data of the Assignor’s clients the company shall act in the capacity of data processor by assignment. The employees of HP Media GmbH shall be obliged to comply with the protection of data and to observe confidentiality concerning corporate and trade secrets. The data on the Assignor’s clients registered by HP Media GmbH shall be used exclusively for the implementation of the order and for servicing clients. For this purpose the data may be saved or transferred to third parties. The data of the Assignor’s clients shall be protected under the Personal Data Protection Act.
XII. Concluding Provisions
1. The contractual relations between the Assignor and HP Media GmbH shall be governed by German law.
2. The location for execution and of the jurisdiction of any mutual obligations of the parties shall be the seat of HP Media GmbH.
3. In the event one or more clauses of the General Contract Terms is or becomes invalid, this shall not affect the remaining clauses. In this case the parties shall be obliged to agree on substituting provisions complying to the maximum possible extent with the initial intention of the invalidated clause.