General Terms
& Conditions
General Terms & Conditions of netzwerk P Produktion GmbH,
Forststraße 7, D-70174 Stuttgart for the purchase of goods and services.
§ 1 Scope
1. The following conditions of netzwerk P Produktion GmbH (hereinafter referred to as the Customer) apply to all contracts concluded between the Customer and the Contractor regarding the delivery of goods to the Customer or the provision of services for the Customer. Any deviating conditions of the Contractor which are not explicitly known to the Customer shall not be binding for the Customer, even if it does not explicitly object to them.
2. In the case of an objection by the Contractor, the Customer reserves the right to withdraw from the order, without the Contractor having the right to assert any claims as a result thereof, for whichever legal reason.
§ 2 Conclusion of the contract
1. Contracts shall only be effective in the written form. Verbal agreements, including subsidiary agreements, shall only be effective if they have been confirmed in writing by the Customer.
2. Changes shall also only become effective if made in writing. This also applies to the requirement for the written form itself.
3. The Customer shall only be bound to unilateral purchase orders of the Customer, if the order is confirmed and accepted by the Contractor immediately in writing. Until receipt by the Customer of the declaration of acceptance by the Contractor, the Customer can withdraw the order at any time.
§ 3 Prices
1. The agreed prices are fixed prices for the duration of the respective production or contract period, or for at least 6 months. Any price adjustments required following expiry of the fixed price period must be announced unrequested 1 month before taking effect. In this case, the Customer reserves the right to withdraw from any running contracts. Previously provided services are to be settled at the old prices. This also applies for deliveries which, if processed on time, were to be completed during the fixed price period, provided the timely completion was delayed by circumstances for which the Customer is responsible. The Contractor shall not be entitled to make other claims, including claims due to investments or purchases made by the Contractor for production.
2. The agreed prices are inclusive of all additional charges, in particular packaging, packing, insurance and shipment to the delivery address specified in the order, or to the Customer if no delivery address is specified. The Customer also reserves the right to specify a different binding delivery address retrospectively. Any additional costs incurred as a result of this will only be reimbursed if they are significant.
3. Insofar as changes to the delivery item are made after placement of the order, which result in additional or lower costs, the Customer is to be given written notification of the changed costs immediately and comprehensibly before commencement of execution of the order. Additional costs shall not be recognised without the explicit confirmation of the Customer.
§ 4 Production releases, costs for changes
1. Drafts, models, corrections, blueprints, signs, design plots, etc. are to be submitted to the Customer for review and release. The declaration of release does not excuse the Contractor from its sole responsibility for error-free execution in accordance with the specifications, templates or data.
2. In the event of changes due to authoring corrections or similar, the Customer must be given immediate notification of the costs incurred together with information on the respective corrections. Any costs specified at a later date will not be recognised.
§ 5 Sample copies
1. As a general rule, the Customer shall receive production samples immediately following completion, taking into account the respective information in the purchase order and sent free of charge.
§ 6 Delivery deadline
1. The delivery deadline specified by the Customer in the purchase order or the specified delivery date shall be binding for the Contractor.
2. Should the Contractor default with delivery, the Customer shall be entitled to assert statutory claims.
3. The Contractor shall be obligated to reimburse the Customer for any claims for compensation made against the Customer due to delay, if the delay by the Customer is due to the delay by the Contractor. In such a case, the Customer shall not be obligated to provide a judicial clarification of the claims by the third party.
§ 7 Deliveries, partial deliveries, excess, short and incorrect deliveries
1. All goods deliveries are to be announced. Acceptance of goods cannot be guaranteed for unannounced deliveries. In this case, performance shall not occur.
2. All deliveries shall be made in one delivery. Partial deliveries are to be agreed in advance and are only permissible with the consent of the Customer.
3. If packing or packaging which does not comply with the requirements prevents further processing, the Customer can choose to refuse acceptance of the delivery or to charge any additional costs to the Contractor.
4. Any excess deliveries which have not been agreed shall not be paid for, even if the deliveries have been accepted.
5. Short deliveries shall not be accepted. Should these be accepted nonetheless, the Contractor shall be obligated to accept any resulting costs.
§ 8 Payments
1. All invoices from the Contractor must include the order data specified by the Customer as well as all information required for tax purposes, in particular the tax number or VAT ID no. of the Contractor.
2. The invoice amount shall be due 60 days following receipt of the invoice by the Customer. In the event of payment within fourteen working days, a 5% discount shall be applied, with a 3% discount being granted on all items up to the 25th day of the following month. The periods shall begin at the earliest upon receipt of the contractual service and a proper and verifiable invoice. In the event of acceptance of early deliveries, however, the period shall begin at the earliest at the agreed delivery deadline.
3. The Contractor shall not be entitled to transfer claims from the contractual relationship to third parties without prior written consent by the Customer.
4. The Customer shall be entitled to all statutory rights of retention. It shall be authorised to transfer claims from the completed contract without the Contractor's consent.
§ 9 Warranty
1. The Contractor undertakes to provide its deliveries and services in line with the latest state of technology and in compliance with all security regulations. It guarantees that its deliveries and services shall remain free from faults during the warranty period.
2. The Customer shall check the contractual object for obvious quality and quantity deviations within a reasonable period after delivery and shall notify the Contractor of any defects. Notice of obvious defects shall be deemed timely if it is given within ten working days of delivery of the goods. In the case of delivery to third parties, the period shall be extended by four working weeks. The Contractor shall not be held liable for checks which cause damage to the packaging or impair the storability of the products.
3. The Contractor shall be liable to the Customer to the extent of the law. If concealed defects are discovered during further processing and if the Contractor cannot eliminate the defect promptly enough to keep damages low, the Customer shall be entitled to eliminate the defect itself at the cost of the Contractor or can charge the Contractor for the additional costs incurred as a result of the defect.
4. The period of limitation for warranty claims is two years from delivery, unless the legal limitation is longer, such as in the case of fraudulent intent by the Contractor or in the case of Section 478 of the German Civil Code (BGB).
§ 10 Liability of the Contractor
1. The Contractor shall be liable for breaches of duty to the extent of the law.
2. If a claim for compensation due to a product fault is asserted against the Customer by a third party, the Contractor must, at first request, release the Customer from all claims by third parties including the necessary costs for defence of these claims, if the Contractor has attributed the reason in its domain and organisational area.
3. If a third party asserts a claim against the Customer or its clients because the delivery by the Contractor infringes upon a statutory property right of the third party, the Contractor shall be obligated to release the Customer, at first request, from claims by the third party, including all necessary expenses incurred by the Customer in connection with the claim made by the third party and defence against said claim. The Customer shall inform the Contractor immediately of the assertion of rights by third parties. The Customer reserves the right to recognise the claims by the third party and/or to make agreements with the third party in respect of these claims. The period of limitation for these rights of recourse shall be three years, calculated from the time at which the Customer becomes aware of the claim by the third party.
§ 11 Copyright, usage rights
1. Insofar as services provided by the Contractor for execution of the order enjoy copyright protection, the Contractor shall grant the Customer an exclusive, unlimited, transferrable usage right for all known usage types, in particular the right to publish, distribute, duplicate and edit. Separate remuneration shall not be due.
§ 12 Property, publication and obligation to store
1. The parts (goods subject to retention of title), tools, drawings, models, patterns or similar objects provided by the Customer or its clients, shall remain the property of the Customer or client and must be returned to the Customer free of charge following completion of the order, at its request and without prompting.
2. If the Contractor carries out conversions, transformations or amalgamations with its own materials, this shall be done exclusively for the Customer, and the Customer shall acquire sole ownership of the end product. If the Customer's goods subject to retention of title are converted or mixed with materials that are not owned by the Contractor, the Customer shall acquire co-ownership of the newly created material in the ratio of the value of the goods subject to retention of title provided by the Customer to the other processed materials at the time of processing.
3. If the Contractor creates print templates, lithos, photos, final drawings for execution of an order, or has them created, then it must release these to the Customer or its client at the latest after complete execution of the order, or at the Customer's request even before, free of charge and in the final production status.
4. If it is to be expected that similar or periodically recurring orders will be placed, the Contractor must store, free of charge, any printed documents provided, as well as the print templates, lithos, photos, patterns, print forms, final drawings, layouts and associated digitally produced data, data records, files and similar data media created by itself or third parties for execution of the order for a period of at least two years at the Customer's request. The period shall begin upon expiry of the calendar year in which the order was executed or irrevocably not executed. Destruction of the above-mentioned objects requires prior written consent by the Customer.
§ 13 Secrecy
1. The Contractor undertakes to treat as confidential any information made known to it in the course of the cooperation. This applies for all information in any shape or form, including, but not limited to, all technical information and procedures, specifications, records, drawings, designs, marketing, customer, price, financial, sales and/or other business information, including this agreement and the fact that the Parties are holding talks with each other.
2. Confidential treatment means not making the received information available to third parties and taking reasonable precautions to avoid access by third parties to the information, records or technical equipment. The duty to maintain confidentiality applies to anyone, including sub-contractors of the Contractor and other employees of the Contractor, insofar as they are not immediately involved in the subject area in question. The Contractor shall protect the information received from netzwerk P Produktion GmbH with the same care as its own business and operating secrets.
3. Where required by the contract, the forwarding of information to external consultants, internal employees and any commissioned sub-contractors is permissible. However, this is subject to the explicit condition that these persons provide a written undertaking under penalty of law to maintain the same secrecy and confidential treatment as laid out in this Agreement.
4. The Contractor undertakes to use the received information only in connection with the contract for the purposes of which it has received the information. Any use beyond this shall be excluded. The Contractor shall not prepare any copies, transcripts or other compilations of the received information, provided this is not necessary in connection with the execution of the contract.
5. The above-mentioned obligations shall not apply if and insofar as the information from netzwerk P Produktion GmbH is explicitly labelled as "non-confidential information", or if and insofar as the recipient of the information proves that
a) the information was already publicly known at the time of receipt or - without fault of the recipient of the information - will become publicly known later;
b) the recipient of the information is obligated to publish the information to third parties due to legal provisions; in such a case, the recipient of the information will provide immediate written notification of this obligation to the respective other Party, if possible before such publication.
6. Following completion of the respective order, the Contractor shall be obligated to return to the Customer, immediately on request, all information received in writing or recorded in any other way in accordance with section 1 (including any copies).
7. The obligation to maintain confidentiality shall remain in force for a further period of five years after completion of the cooperation.
8. The Parties agree that no transfer of ownership or any kind of usage rights is associated with the transfer of information.
9. The Contractor undertakes to pay a contractual penalty of EUR 50,000 (in words: fifty thousand euros) to the Customer for each case of infringement against the above-mentioned obligations - each singular act will be deemed an individual infringement. This also explicitly applies if the consultant or sub-contractor is not or is inadequately obligated to maintain secrecy. The Customer shall be entitled to demand from the Contractor, or at its discretion also from third parties, compensation in excess of the contractual penalty for damages incurred by an infringement. This shall also apply if the infringement was caused by consultants or sub-contractors of the Contractor. The Contractor undertakes in particular to release the Customer from all claims asserted by the Customer of netzwerk P Produktion GmbH against netzwerk P Produktion GmbH due to infringement of the obligation to maintain secrecy. This too applies explicitly if the infringement was caused by consultants or sub-contractors of the Contractor.
§ 14 Place of performance, applicable law, severability clause
1. The place of performance and exclusive place of jurisdiction for deliveries and payments and for all disputes resulting between the Parties due to the contracts completed between them, shall be the registered office of the Customer, provided the Contractor is a trader, legal entity or a special fund under public law.
2. This agreement shall be subject only to the law of the Federal Republic of Germany which is decisive for the legal relationships of domestic Parties. The place of jurisdiction for all disputes and proceedings from or in connection with this Agreement including its effectiveness shall be Stuttgart.
3. Should provisions of this Agreement be or become ineffective, this shall not affect the effectiveness of the remaining provisions of this Agreement. The same applies if it transpires that this Agreement contains a loophole. The Parties agree that a regulation should apply in this case, which approximates to the meaning of the agreed provision as closely as is legally possible.
01.01.2006