General Terms and Conditions

General Terms and Conditions

Effective as of September 2009

I. Scope of applicability

Orders will be carried out exclusively under the following Conditions. Conditions that conflict with or diverge from our Terms and Conditions will not be recognized except after our express written consent of their applicability. These Terms and Conditions shall also apply when we carried out the order without reservation in knowledge of conditions of the Ordering Party that conflict or diverge from these Terms and Conditions. With the conclusion of the initial contract, the Contracting Party also accepts the applicability of these Terms and Conditions for completed follow-up business with us even when they have not again been expressly agreed upon.

II. Offers

  1. Offers are always subject to change. Descriptions of the articles to be delivered are non-binding when they have not been expressly agreed upon as binding. Orders submitted verbally, in writing or by means of data telecommunication shall be legally binding only when they are carried out or confirmed in writing by us and when the Ordering Party does not forthwith object to the written confirmation.
  2. Negligible and (in particular) customary-in-trade, and material-caused variations of the ordered goods in quality, color, design, finishing and manufacture shall have no bearing on the contractually specified condition.
  3. Our descriptions of our products and procedures relate to a wider body of research and application-technological experience. We impart this knowledge – by which we assume no obligation that exceeds each respective contract –verbally and in writing to the best of our knowledge while reserving for ourselves any technical modification in the product-development process. This does not, however, absolve the Ordering Party from personally examining our products and processes for application to one’s own purposes. The descriptions of use of the Ordering Party are only authoritative after we have confirmed with the conclusion of a contract that the delivered products are adequate to the Ordering Party’s intended application. This also applies to the protection of third-party intellectual-property rights, applications and processes.
  4. Schulz FlexGroup reserves all property and intellectual-property rights to samples, sketches, preliminary designs, compositions, test specimens, test printings, proofs and other documents. These shall not be made available to third parties without prior written consent of Schulz FlexGroup.

III. Prices

  1. The listed prices on offer from Schulz FlexGroup apply with the reservation that the job data that forms the basis of the tendering of the offer remain unchanged, at the longest, though, for four months after the receipt of the offer by the Ordering Party. We reserve the right to make adequate price changes due to changed wage, material and distribution costs for deliveries that occur four months after the receipt of the offer by the Ordering Party. With orders involving delivery to a third party, the order-placing party is considered as the Ordering Party as long as there was no other express agreement made. The prices of Schulz FlexGroup do not include value-added tax and apply ex-factory. They do not include packaging, freight, postal charges, insurance and other shipping costs.
  2. After-the-fact changes at the instigation of the Ordering Party, including the resulting machine stoppage, shall be charged to the Ordering Party. Instances of after-the-fact changes also include repeated test printings that are requested by the Ordering Party due to a minor variation from the master copy.
  3. Sketches, preliminary designs, compositions, test specimens, test printings, proofs, changes of delivered/transmitted data and similar preliminary work that the Ordering Party has requested will also be invoiced. The same applies for data transmission (for example, via ISDN). Modifications to the printer’s copy shall be invoiced according to the resulting extra labor time. The same applies for corrections that result from illegibility or for other corrections, in particular for corrections by graphic designers.

IV. Payment

  1. Payment must be made immediately and in full upon receipt of the invoice. The deduction of a discount requires a special written agreement. A possible discount agreement does not apply to freight, postal charges, insurance or other shipping costs. The invoice will be issued on the day of delivery, partial delivery or readiness for delivery (obligation to be performed at the place of business of the Debtor, default of acceptance). Bills of exchange shall only be accepted by special agreement and on account of payment with no granting of a discount. The Ordering Party shall pay any interest and transaction fees immediately. The Schulz FlexGroup is not liable for the prompt presentation, protest, notification and non-payment of a bill of exchange unless it can be shown that Schulz FlexGroup or its agents of vicarious liability have acted with deliberate intent or gross negligence.
  2. In the event there is exceptional preliminary work, it shall be possible to demand appropriate advance payment.
  3. The Ordering Party may only determine a balance owed with an uncontested or legally forceful and determined demand, or exercise a right to refuse performance until counter-performance is affected.
  4. If it is determined after the conclusion of the contract that the satisfaction of a claim is placed in jeopardy by the Ordering Party’s payment ability, then the Schulz FlexGroup may demand a preliminary payment, withhold yet undelivered goods and cease further work. Schulz FlexGroup is entitled to these rights even when the Ordering Party is in default with the payment of deliveries that are related to the same legal relationship. § 321 (2) of the German Civil Code (BGB) remains unaffected.
  5. In the event of payment default, a late-payment interest of 8% above the base lending rate shall be paid. The enforcement of further damages due to delayed performance is not excluded on this account. If the Ordering Party fails to pay (including additional expenses) within ten days after receiving the invoice and the delivery of the goods as per “III. Prices,” then said party shall be in default even without a payment warning.

V. Delivery

  1. If the goods are shipped, then the risk transfers to the Ordering Party as soon as the shipment is delivered to the person who is carrying out the transport. The shipment of the ordered goods occurs ex-factory and the Ordering Party bears all cost and risk. In the absence of special agreements, Schulz FlexGroup is free to choose the transport firm and means of transport.
  2. A delivery date only applies when Schulz FlexGroup has confirmed it as a “binding delivery date”. If the contract has been concluded in writing, then a confirmation of the delivery date is also required in writing.
  3. The delivery is subject to adequate supplies to the Schulz FlexGroup. If adequate supply is not available, Schulz FlexGroup is entitled to withdraw from the contract. Schulz FlexGroup shall notify the Ordering Party without delay about the supply problem. Any payments already received shall be refunded to the Ordering Party in the event of contract withdrawal.
  4. In the presence of force majeure (for example, labor dispute, fire, strike, lockout, raw material or energy shortfall, machinery breakage) or other conditions for which Schulz FlexGroup is not responsible, the contractual delivery term for delivery is extended for the duration of these events. Should an inability to deliver, due to the aforementioned events, last longer than two months, either the Ordering Party or Schulz FlexGroup are entitled, with respect to the unfulfilled performance, to withdraw from the contract. Before this period of time has elapsed, both contractual parties are barred from withdrawing due to the aforementioned reasons for delay.
  5. A prerequisite for honoring the delivery date is the timely fulfillment of the contractual obligations that the Ordering Party has undertaken, in particular the performance of the agreed-upon payments and, if applicable, the fulfillment of agreed-upon security.
  6. In addition, in cases in which there is a delay for which Schulz FlexGroup is responsible, the Ordering Party is not entitled to an enforcement of further rights until a period of at least three weeks after the delay began has elapsed without effect.
  7. Schulz FlexGroup reserves the right to retain the print and stamp proofs, manuscripts, raw materials and other objects that have been provided by the Ordering Party as per § 369 of the German Commercial Code (HGB) until that time when there all outstanding claims existing in the business relationship have been fulfilled.
  8. Transport and all other packaging as per the Regulations on Packaging (VerpackV) are non-returnable, excepting, however, EURO pallets, which may be returned. The Ordering Party is responsible – at its own cost – for the disposal of packaging.
  9. Make-and-hold orders are, at the very latest, required to be collected and payment effected within twelve months after the conclusion of the contract, unless otherwise agreed upon in writing.
  10. Should the Ordering Party fall into arrears with the release order, the acceptance or the pickup, or if said Party is liable for a shipping or delivery delay, Schulz FlexGroup shall be entitled, without prejudice to further claims, to cost compensation amounting to the customary warehousing costs in the area, irrespective of whether the goods are housed by Schulz FlexGroup or by a third party. The Ordering Party is required to prove that no or only minor damages occurred.

VI. Retention of title

  1. The delivered goods remain the property of Schulz FlexGroup until complete payment of all outstanding claims raised by it against the Ordering Party. The Ordering Party is entitled to resell the goods only in the normal course of its business. The Ordering Party shall cede its claims arising from the resale to the Schulz FlexGroup. Schulz FlexGroup hereby accepts the cession. The Ordering Party remains authorized to accept claims after the cession. The authority of Schulz FlexGroup to collect the claims itself remains unaffected by this; however, Schulz FlexGroup shall not make use of this right as long as the Ordering Party complies in due form with its payment obligations as well as its other obligations. The Ordering Party shall disclose all assigned claims and their respective debtors, shall provide all the information required to collect payment, shall surrender all related documents and shall inform the debtors of the cession of claims.
  2. In the event of behavior that is in breach of the contract by the Ordering Party, in particular in the event of default of payment, Schulz FlexGroup shall be entitled to withdraw from the contract and reclaim the goods. In order to reclaim the goods, the Ordering Party hereby irrevocably grants Schulz FlexGroup the right to enter its business and warehousing facilities unhindered and to remove the goods. The Ordering Party shall neither – to the extent that and so long as the retention of title exists – assign the goods as security nor pledge the goods without the consent of Schulz FlexGroup. In the event of distrainment or other interventions by a third party, the Ordering Party shall notify Schulz FlexGroup in writing without delay. If the value of the existing securities exceeds its claims by more than 20%, then Schulz FlexGroup shall be obligated, at the request of the Ordering Party or of a third party compromised by Schulz FlexGroup’s over-collateralization, to release securities chosen by Schulz FlexGroup.
  3. In the event of handling or processing of goods that were delivered by and exist as property of Schulz FlexGroup, said Party shall be recognized as manufacturer as per § 950 of the German Civil Code (BGB), and retains the property at every stage of the processing. If a third party is involved in the handling or processing, then Schulz FlexGroup shall be limited to a joint-ownership share amounting to the invoice value of the retained goods.

VII. Rejections/Warranties

  1. The Ordering Party shall examine the goods and the preliminary and interim products immediately upon receipt to determine whether they conform to the contract. The risk of any errors passes to the Ordering Party after it makes a Declaration of Printing Readiness/Declaration of Manufacturing Readiness unless the error first arises or is recognized in the stages after the Declaration of Printing Readiness/Declaration of Manufacturing. The same applies to all other Declarations of Readiness by the Ordering Party.
  2. Obvious defects shall be reported in writing within a period of one week after receipt of the goods; hidden defects within a period of one week after discovery. Failing this, the enforcement of warranty claim is excluded.
  3. Effectively remedied and apparent defects substantiate the following rights of the Ordering Party: The Ordering Party shall have the right to demand subsequent improvement from Schulz FlexGroup. The option whether a replacement delivery or a rectification of the defects is made shall be left to the discretion of the Schulz FlexGroup. No claim shall exist on the part of the Ordering Party for any specific type of subsequent improvement. If compensation has not fully or only partially been provided, Schulz FlexGroup may make the subsequent improvement contingent on the Ordering Party’s payment of a part of the outstanding sum that is commensurate with the defect that has been shown to exist. Furthermore, in the event of a failed attempt at providing subsequent improvement, Schulz FlexGroup shall again have the right to choose how it shall be carried out as it sees fit. In the event of a failed attempt in providing renewed subsequent improvement, the Ordering Party shall have the right to withdraw from the contract or to decrease the compensation. The Ordering Party may only demand compensation for damages or reimbursement of fruitless expenses in the event of gross negligence or willful infringement of the obligation to deliver goods that are free of defect. The Ordering Party must establish the reason for and the amount of the damages that arise. The same holds for the fruitless expenses. The warranty period shall be – if there is no other period due to a short expiration date characteristic for the product (for example, cold-seal packaging or pretreatment of foil) – one year from the delivery. The Ordering Party must establish that the defect was present at delivery.
  4. Returns to Schulz FlexGroup resulting from instances of defects may only occur with the consent of said Party. Schulz FlexGroup is not required to accept returns that occur without prior consent. In this event, the Ordering Party is responsible for the costs of the return.
  5. Defects of a part of the delivered goods do not entitle the Ordering Party to reject the entire delivery unless the partial delivery is of no use for the Ordering Party.
  6. No rejection is possible in the event of negligible deviations from the original in color reproductions in all production processes. The same holds when comparing other originals (for example, digital proofs, press proofs) with the final product. Moreover, liability is excluded involving defects that do not – or do not substantially – affect the value or usability for the purposes we have determined.
  7. Irregularities in the composition of the raw materials and additives may not be rejected when they are declared as acceptable in the delivery specifications of the paper, cardboard and plastics industries; and in press work when they have to do with differences between press proofs and the printing run that are a result of printing technology.
  8. Commercially standard printing inks are used for printing. If special requirements are made regarding the inks used (for example, light, alkali and friction fastness, etc.) then special written notification is required when placing the order. Schulz FlexGroup makes no warranty for any plasticizer migration or other similar migration features and the results from them. The Ordering Party is, in particular, responsible for expressly indicating, in writing, any foodstuff safety requirements and the like that arise from the use of the goods by the Ordering Party. The Ordering Party shall be obligated to absolve Schulz FlexGroup from any third-party claims that arise from the indications that were omitted.
  9. Supplies (including data carriers, transferred data) from the Ordering Party or a third party engaged by the Ordering Party shall not be subject to an obligatory inspection by Schulz FlexGroup. This does not apply to clearly unprocessable or unreadable data. Before transferring data, the Ordering Party shall install the most current version of the protection program in question against computer viruses. Backups are solely the responsibility of the Ordering Party. Schulz FlexGroup is entitled to produce a copy.
  10. Deliveries exceeding or falling short of the ordered goods by up to 10% may not be rejected. In the event of small quantities up to 1,000m, this percentage increases to 30%, and up to 2,000m to 20%. The same provision applies accordingly for deliveries calculated by number of pieces, weight or surface. The Ordering Party shall be obligated to accept the deliveries exceeding or falling short, and to pay the agreed-upon compensation for them. Schulz FlexGroup is entitled to the delivery of partial quantities.

VIII.Liability

  1. Any claims for damages and/or expenditures made by the Ordering Party, regardless of the legal rationale, are excluded.
  2. 2. This general disclaimer of liability does not apply
    - when they arise as a result of willful or gross negligence,
    - when they arise as a result of a simply negligent breach of substantive contractual obligations, even by a legal representative or vicarious agent of Schulz FlexGroup; in this respect, the Ordering Party is only liable for the typical and foreseeable damages according to the type of product,
    - in the event of culpable damages to life, body or health of the Ordering Party,
    - in the event of malicious concealment of defects and adopted guarantee for the composition of the goods,
    - in the event of claims arising from Product Liability Regulations (ProdHaftG).
  3. Claims of damages of the Ordering Party are limited to the foreseeable, typical contractual damages. Compensation for secondary damages, for example, for lost profits, is excluded.
  4. In as far as the liability for damages is excluded or limited, this shall also apply to the personal liability of our employees, staff, representatives and other vicarious agents.

IX. Prescription period

The Ordering Party’s warranty and damage-compensation claims lapse – excepting the damage-compensation claims described in VIII (2) – in one year beginning with the delivery or handover of the goods. This does not apply when the Agent has acted with malice.

X. Commercial usage

In the course of commercial intercourse, the commercial practices of the printing industry apply (for example, no obligation to surrender interim products such as data, lithos or printing plates made to produce the final product that is due) if no divergent order has been placed.

XI. Archiving

The products to which the Ordering Party is entitled, in particular, data and data carriers, shall only be archived with express agreement and with special compensation after the moment in which the end product has been delivered to the Ordering Party or said Party’s vicarious agents. If the aforementioned objects need to be insured, then, in the absence of an agreement, the Ordering Party shall arrange this.

XII. Periodically reoccurring work

Contracts involving regularly reoccurring work may be terminated at the earliest three months at the end of each month.

XIII. Industrial property rights / intellectual property / samples

  1. The Ordering Party is solely liable when third-party rights – in particular, intellectual property rights – are infringed. The Ordering Party shall absolve Schulz FlexGroup of all third-party claims arising as the result of such infringement.
  2. The lithographs, films, printing and press forming dies, samples, sketches, printing plates manufactured by Schulz FlexGroup or resulting from a commission remain property of Schulz FlexGroup, even when the manufacturing costs were fully or partially invoiced to the Ordering Party. An obligatory storage period for external impressions and other customer-related objects does not exist. They shall be destroyed and disposed of at the latest 24 months after the last delivery involving these items unless a previous written agreement has been met regarding archiving.

XIV. Place of performance, court of jurisdiction, validity

  1. The place of performance and court of jurisdiction when the Ordering Party is an enterprise, a legal person or a legal special property, or when it occupies no general court of jurisdiction, shall be the seat of business of Schulz FlexGroup for all disputes arising from the contractual relationship, including, proceedings based on documentary evidence, checks or bills of exchange. The contractual relationship is governed by German law. UN Purchase Law is excluded.
  2. The invalidity of one or more of these provisions shall not affect the validity of the remainder of these provisions.