General Terms and Conditions – Monkeydrive Printing Factory GmbH
Section 1 Applicability
(1) Our General Terms and Conditions (hereinafter referred to as the “AGB”) shall apply exclusively; deviating or contradictory conditions of the customer shall not be recognised by us unless we have agreed to their applicability in writing.
(2) These AGB shall also apply for all future business between the parties and even if we carry out delivery of the goods in the knowledge of deviating or contradictory conditions.
(3) These AGB shall only apply towards companies, legal entities under public law or special funds under public law in the terms of section 310 BGB.
Section 2 Offer, acceptance
Our offers are subject to confirmation. All orders placed shall only become binding for us on being confirmed by us in writing or, alternatively, on delivery of the goods. The Customer shall check our confirmation of order without delay for correctness and completeness; this shall apply in particular to the prices, dimensions and quantities stated.
Section 3 Prices, payment
(1) Our prices apply ex works plus the currently valid VAT and costs for special packaging. Our deliveries shall take place in accordance with the EXW clause of INCOTERMS inasmuch as nothing else has been expressly agreed.
(2) The Customer is responsible for observance of the statutory provisions concerning import, customs, transport and storage. Inasmuch as the Customer avails itself of our support, we shall charge the customary fees.
(3) If the Customer comes into default of payment, we are entitled to demand default interest amounting to 8 percent above the base interest rate for the year. Our right to the assertion of further damages is reserved. .
(4) Customers‘ cheques are only accepted by us on account of performance. Payment shall be regarded as having taken place when the amount of the cheque has been irrevocably credited to our account.
(5) Material samples delivered by us shall be invoiced and can be returned within two weeks. After correct return, we shall refund the charge made for the sample.
(6) We reserve the right to alter out prices appropriately if, after conclusion of contract, cost reductions or cost increases occur, in particular due to wage agreements or any change in the price of materials.
(7) In the case of reduced quantities, i.e. less than 50 t-shirts, we shall make a reasonable surcharge.
(8) Inasmuch as in line with the wishes of the Customer, goods are manufactured individually, in particular printed, we are entitled to demand advance payment by the Customer amounting to 40 % of the net value of the goods. The advance payment shall be due within 5 working days of the conclusion of contract. Only on receipt of such payment shall we commence the order. In the case of delay in payment, the delivery periods shall be extended correspondingly.
Section 4 Set-off, retention
The customer is only entitled to retention inasmuch as his counterclaims are undisputed or established with legal effectiveness. The Customer is only entitled to assert retention rights on the basis of counterclaims from the same contractual relationship.
Section 5 Delivery
(1) Delivery is conditional on correct fulfilment of the Customer’s co-operation duties in good time. We reserve the right to plead failure to perform the contract.
(2) In the case of default of acceptance or other culpable violation of co-operation duties on the part of the customer, we are entitled to compensation for the resulting damage including any addition expense. We reserve the right to further-reaching claims. The risk of accidental loss or accidental deterioration of the goods shall be transferred in this case to the Customer at the point of time of default of acceptance or other violation of co-operation duties.
(3) The delivery periods stated by us are non-binding information inasmuch as the date has not been confirmed by us as a binding date of delivery.
(4) Our duty to deliver is subject to the reservation of delivery to ourselves in good time by our own suppliers. This reservation of delivery to ourselves shall, however, only apply if we are not responsible for the lack of delivery and have taken all necessary precautions for performance of contract. We shall inform the Customer without delay about such hindrances.
(5) Inasmuch as it is reasonable for the Customer, we are entitled to make partial deliveries. Inasmuch as shipping is delayed at the request of the Customer or for a reason for which the Customer is responsible, the goods shall be stored at the cost and risk of the Customer. Inasmuch as the Customer exceeds the pick-up date by three weeks, we are entitled to demand acceptance of the goods.
Section 6 Transfer of risk, shipping
In the case of the goods being shipped at the request of the Customer, the risk of accidental loss or accidental deterioration of the goods shall be transferred to the Customer at the point of time of shipment.
Section 7 Reservation of title
(1) The goods shall remain our property up until complete receipt of all payments. In case of violation of contract on the part of the Customer, including default in payment, we are entitled to repossess the goods.
(2) Up to final payment of the purchase price, the Customer shall handle the goods with care and insure them appropriately.
(3) Inasmuch as the purchase price has not been completely paid, the Customer shall inform us in writing without delay if the goods are encumbered with the rights of third parties or is otherwise liable to intervention by third parties.
(4) The Customer is entitled to resell the goods subject to the reservation of title within the framework of customary business transactions. The customer shall assign all demands from the sale of our goods to us now to secure the claims concerned. Irrespective of our authority to collect the claim ourselves, the Customer is authorised even after assignment to collect its demands. In this connection we undertake not to collect the claim as long as and inasmuch as the Customer meets his payment obligations, has not filed any petition for the opening of insolvency or similar proceedings and there is no suspension of payments.
(5) Inasmuch as the aforementioned sureties exceed the claims to be secured by more than 10%, we are obliged to release the sureties in accordance with our own choice on demand by the Customer.
Section 8 Warranty
(1) The properties of samples and specimens are only binding inasmuch as they have been expressly agreed as the composition of the goods.
(2) We assume no warranty for clothing, materials or substances delivered by the Customer. Inasmuch as we regard such clothing, substances and materials as being unsuitable, we retain the right to reject them.
(3) The Customer shall examine the goods without delay after delivery and, inasmuch as defects are apparent, shall notify us of them without delay, at the latest within 5 working days.
(4) Inasmuch as the Customer does not issue any particular instructions, the goods shall be delivered in cartons. During transport and storage, it is necessary to ensure that the goods do not become damp.
(5) With regard to the print and the material used, we reserve the right to slight changes inasmuch as they are reasonable for the Customer. Reasonable deviations in structure, colour or dimensions shall not be regarded as defects inasmuch as they can be put down to the materials used and are also regarded as customary in the trade,
(6) The limitation period for claims for defects is twelve months. This does not apply to claims in accordance with sections 438 sub-section 1 no. 2, 634a sub-section 1 no. 2, 478, 479 BGB.
(7) In the case of defects in or on the goods, the Customer shall first of all have the right to subsequent improvement in the form of the elimination of the defect or delivery of an item without defects. In the case of failure of subsequent improvement, the Customer is entitled to reduce the purchase price or to withdraw from the contract. The following liability regulations shall apply for claims for damages.
Section 9 Liability
(1) In the case of intent or gross negligence on our part or on the part of our representatives or vicarious agent, we shall be liable in accordance with the statutory regulations; also in the case of culpable violation of significant contractual duties. Inasmuch as there has been no intentional violation of contract, our liability for damages is limited to the foreseeable, typically occurring damage.
(2) Inasmuch as we are in delay with the delivery or service as a result of simple negligence, our liability for this is limited to 3 % of the net value of the goods per completed week of delay but limited to a maximum, however, of 15% of the net value of the goods.
(3) Liability due to culpable fatal injury, physical injury or damage to the health, and liability in accordance with the Product Liability Act remains unaffected.
Section 10 Rights of third parties, copyright
(1) Inasmuch as we produce the goods in accordance with the Customer’s wishes, drafts, drawings, images etc., the Customer shall ensure that no rights of third parties are violated by this, in particular no copyright or rights to use. Inasmuch as third parties target us with claims in this respect, the Customer shall fully indemnify us against such.
(2) The customer shall provide us with the templates required for print at least 10 days before the planned date of delivery.
(3) We reserve the copyright and right of ownership of drafts, images, drawings, calculations and other documents drawn up by us.
Section 11 Force majeure
(1) Should events, which lie outside our sphere of influence (e.g. natural events, labour unrest, transport disturbances, public directives etc.) reduce the availability of goods so that we cannot meet our contractual obligations, we are (i) released from our contractual duties for the period of disturbance, (ii) not obliged to procure the goods from third parties. This shall also apply for the case that the events make execution of the contract concerned sustainably uneconomical for us.
(2) If these events last for longer than 3 months, we are entitled to withdraw from the contract.
Section 12 Applicable law, place of jurisdiction
(1) This contract is subject to the law of the Federal Republic of Germany excluding the CISG (United Nations Convention on Contracts for the International Sale of Goods).
(2) The place of jurisdiction is Frankfurt am Main or, in according with our choice, the general place of jurisdiction of the customer provided that the Customer is a businessman in the terms of the Commercial code, a legal entity under public law, or a special fund under public law.
(3) The place of performance for the payment obligation of the Customer is our place of business independent of the place of transfer of the goods or documents.