Terms & Conditions 04/2021
I. Scope of the Terms & Conditions
- These terms & conditions of Faubel & Co. Nachfolger GmbH ("Faubel") shall apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of section 310 paragraph 1 BGB (German Civil Code). The validity of the purchaser’s terms and conditions shall be excluded. Any terms and conditions of the purchaser to the contrary, insofar as they are not expressly stipulated in the contract, shall not apply in this respect. Other terms and conditions of the purchaser shall not apply even if Faubel accepts a service from the purchaser without objection.
- These terms & conditions shall also apply to all future business transactions with the purchaser, insofar as these are legal transactions of a related kind without the need for a separate agreement.
- Individual agreements agreed into with the purchaser in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these terms & conditions. Subject to proof to the contrary, the content of such deviating agreements shall be governed by a written contract or our written confirmation, which shall expressly state the deviation from these terms & conditions.
II. Conclusion of contract, subject matter of contract, contract amendments
- A contract shall be deemed to have been concluded following the purchaser's order in text form on the basis of an offer from Faubel or an order confirmation from Faubel on the basis of an order. All offers by Faubel are subject to confirmation and valid for a maximum of 30 days. Cost estimates or
budget plans prepared by Faubel shall not be binding.
- The prices quoted in Faubel's offer shall apply subject to the provision that the order data on which the offer is based remain unchanged. All prices quoted by Faubel shall be net prices excluding any value added tax which may be applicable. Faubel's prices shall apply ex works. They shall not include packaging, freight, postage, insurance and other shipping costs which are shown separately.
- Subsequent changes at purchaser's request, including the resulting machine downtime, shall be charged to the purchaser. Subsequent changes shall also be deemed to be repetitions of test prints requested by the purchaser due to minor deviations from the original.
- Sketches, drafts, sample typesetting, test prints, samples and similar preparatory work initiated by the purchaser shall be invoiced separately by Faubel according to the current price list, unless otherwise agreed.
- Faubel reserves the right to make reasonable design changes which Faubel, at its own discretion, considers to be appropriate. Minor, in particular customary deviations in quality, color, design, equipment and processing shall not affect the contractual quality of the goods.
- Faubel shall submit final artwork and proofs only upon express request. The purchaser shall immediately check them for errors and, if they are found to be free of errors, declare them "ready for printing and approved". Faubel shall not assume any warranty for errors overlooked by purchaser. If sentence corrections result from subsequent changes not provided for in the manuscript, the purchaser shall be invoiced additionally (author correction). Faubel shall correct typesetting errors caused by Faubel free of charge. After approval for printing has been granted, any warranty by Faubel for printing errors overlooked by the purchaser shall be excluded. Changes made by telephone shall require written confirmation.
- All payments (net price plus VAT) are to be made within 30 calendar days of the invoice date without deduction. If payment is made within 14 calendar days after the invoice date, Faubel shall grant a 2% discount on the invoice amount, but, if stated in the invoice, without costs for freight, postage, insurance or other shipping costs. The invoice shall be issued on the day of delivery, partial delivery or readiness for delivery (debt to be collected, default of acceptance).
- In the event of a need to provide unusually large quantities of paper and cardboard, special materials or advance services, Faubel may demand an appropriate advance payment up to the amount of the purchase price for the respective materials.
- The purchaser may only set off against a claim which is undisputed or has been finally determined by a court of law. A purchaser who is a merchant within the meaning of the German Commercial Code (HGB) shall have no rights of retention or set-off. However, the rights pursuant to section 320 BGB shall remain in effect as long and to the extent that Faubel has not met its obligations pursuant to Section VI.
IV. Payment defaults
- If the fulfillment of the claim for payment is endangered due to a deterioration of the financial situation of the purchaser which has occurred or has become known after the conclusion of the contract, Faubel is entitled to demand advance payment and immediate payment of all outstanding invoices, including those not yet due, to retain goods not yet delivered and to stop further work on orders still in progress. Faubel is also entitled to these rights if the purchaser fails to make payment despite a reminder with reasons for default.
- In case of default of payment, interest on arrears shall be payable at a rate of 9% above the respective base rate in accordance with section 247 BGB. This does not exclude the assertion of further damages caused by default.
V. Delivery conditions
- The beginning of the delivery time indicated by Faubel is subject to the timely and proper fulfilment of the purchaser's obligations, in particular the purchaser's obligations to timely fulfill its cooperation obligations. The defence of non-performance of the contract remains reserved.
- In case the purchaser is in default of acceptance or if he culpably violates other obligations to cooperate, Faubel shall be entitled to demand compensation for the damage incurred by Faubel in this respect, including any additional expenses. Further damage claims shall remain explicitly reserved. If the aforementioned conditions exist, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the purchaser at the time when the purchaser is in default of acceptance or debtor's delay.
- Faubel shall dispatch the goods for the purchaser with due care. If the goods are dispatched to the purchaser at the latter's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser upon dispatch, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs. The goods are insured in accordance with the respective forwarding terms of the carrier.
- Delivery dates shall only be valid if they are expressly confirmed by Faubel. If the contract is concluded in writing, confirmation of the delivery date must also be in writing.
- Operational disruptions - both in Faubel's company and in that of a supplier - in particular strike, lockout, war, global pandemics, riots and all other cases of force majeure, shall not entitle the purchaser to terminate the contractual relationship.
- Any delivered goods shall remain the property of Faubel until payment has been made in full. The purchaser shall only be entitled to resell the goods in the ordinary course of business. The purchaser hereby assigns his claims from the resale to Faubel. Faubel hereby accepts this assignment. Moreover, the purchaser shall not be entitled to pledge the reserved products otherwise, to assign them as security or to make any other dispositions endangering the property of Faubel.
- Faubel shall be entitled to a right of retention of clichés, manuscripts, raw materials and other items delivered by the purchaser in accordance with section 369 HGB (German Commercial Code) until all due claims arising from the business relationship have been met in full.
- Faubel does not warrant the suitability of the products for the purpose intended by the purchaser unless Faubel has expressly warranted a certain suitability. The purchaser shall therefore be obliged to test the suitability of the material for its special purpose.
- The purchaser must inspect the goods immediately after delivery and report any defects in full. A notice of defect must be made in writing and must be received by Faubel no later than 8 days after delivery of the goods. Rejected goods shall be returned to Faubel immediately to verify the justification of the notice of defects. In the event of justified complaints Faubel shall be obliged, at its discretion, to either repair or deliver defect-free replacement goods within 4 weeks after receipt of the goods complained about. Should Faubel fail to comply with this deadline or should the rectification of defects fail, the purchaser shall be entitled to terminate the contract or to demand a reduction of the purchase price at his discretion, provided he has set a written grace period of 2 weeks. Only the defective quantities that are made available to Faubel can be credited, unless expressly agreed otherwise.
- Defects in a part of the delivered goods do not entitle the purchaser to complain about the entire delivery, unless the partial delivery is of no interest to the purchaser.
- In the case of color reproductions, minor and insignificant deviations from the original shall not be deemed defects. The same shall apply in the event of minor and insignificant deviations between press proof and production run.
- Faubel shall only be liable for deviations in the quality of the material used up to the amount of its own claims against the respective supplier. In such a case Faubel shall be released from its liability if it assigns its claims against the supplier to the purchaser. Faubel shall be liable like a guarantor to the extent that claims against the supplier do not exist through the fault of Faubel or such claims are not enforceable.
- Excess or short deliveries of up to 10% of the ordered circulation cannot be objected to. The delivered quantity will be invoiced. In the case of deliveries from custom-made materials of less than 1000 kg, the percentage increases to 20 %, and to 15 % for deliveries of less than 2000 kg.
- The responsibility for the application process as well as the observation of the behaviour of the labels up to 48 hours afterwards (because after 48 hours the maximum adhesive strength of the adhesive is reached and therefore no more changes are to be expected) is the responsibility of the purchaser himself. If there are any conspicuous features regarding the functionality or the anchoring on the container, Faubel must be contacted immediately for analysis and solution finding. The purchaser shall be responsible for any goods already in circulation which show the abovementioned conspicuous features.
- The warranty for any software provided to the purchaser as part of the order is solely governed by the respective software license agreement.
- No warranty is given by Faubel for damages that have occurred as a result of changes made to the delivery item without the consent of Faubel.
- The warranty period is one year, starting as of the statutory beginning of the limitation period. Section § 479 BGB remains unaffected.
- Faubel is only liable without limitation with regards to reason and amount in case of intent and gross negligence.
- Faubel is only liable for simple negligence if Faubel has violated an obligation, the observance of which is of particular importance for the achievement of the purpose of the contract ("essential contractual obligation"). In the event of a breach of essential contractual obligations due to simple negligence, Faubel's liability is limited to the amount of the foreseeable damage typical for the contract. Material contractual obligations in the sense of the aforementioned provisions are obligations, that protect such legal positions of the contractual partner that are essential to the contract and which the contract must specifically grant to him according to its content and purpose; contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely; advisory, protective and obligatory duties which enable the contractual partner to use the goods in accordance with the contract and the main obligations of the contract which are in a mutual relationship.
- The liability for consequential damages is excluded.
- Faubel shall only be liable for cases of initial impossibility if it was aware of the impediment to performance or if its ignorance is based on gross negligence.
- The period of limitation for claims for damages is one year calculated from the statutory beginning of the limitation period.
- The aforementioned exclusions, limitations and restrictions of liability shall not apply to claims under the Product Liability Act or to damages resulting from injury to life, body or health.
- Insofar as the liability of Faubel is excluded, limited or restricted, this also applies to the personal liability of its employees, workers, staff, representatives and vicarious agents.
- The client undertakes to immediately notify Faubel of any damages in the sense of the above liability regulations or to have Faubel record them so that Faubel is informed as early as possible to give the contractual partners the possibility to jointly reduce the damages.
VIII. Obligation of the purchaser
- The purchaser shall be obliged to use Faubel's services properly and within the scope of the agreed purposes of use. Insofar as Faubel has published a user manual for its deliveries and services, the purchaser shall observe this manual.
- The use of Faubel's services by others than the purchaser or the permission of such use shall only be permitted if this is expressly agreed in the contract. A lack of contractual agreement shall not release the purchaser from the obligation to pay for the use of Faubel's services by third parties for appropriate remuneration, unless this is already covered and compensated for by the remuneration paid.
- The purchaser must name a responsible contact person who can make or bring about decisions. The contact person shall record decisions in writing. The contact person shall be available to Faubel for necessary information. Faubel shall regularly inform purchaser about the status of the work and/or enable purchaser to find out the current status of the work itself.
- The purchase shall support Faubel in the performance of its contractually owed services. This includes in particular the timely provision of information, data material as well as hardware and software, insofar as the purchaser's cooperation services require this. The Purchaser shall instruct Faubel in detail regarding the services to be provided.
- Faubel requires as an absolute prerequisite that purchaser has a data backup system that is functional at all times. The purchaser shall be exclusively responsible for the implementation and guarantee of a proper data backup unless Faubel has expressly committed itself to this in writing. Any liability of Faubel for data loss shall be excluded if the purchaser has not complied with its obligations in this respect.
- The purchaser undertakes not to poach any employees from Faubel or to employ them without Faubel's consent or to place orders with them personally for the duration of the parties' cooperation and for a period of one year thereafter. For each case of culpable violation, half an annual salary shall be due for payment to Faubel even without proof of damage. Faubel reserves the right to prove higher damages.
- The purchaser warrants that the information provided by him is correct and complete. He undertakes to inform Faubel without delay about any changes in the contact data provided as well as any other data required for the execution of the contract.
- Faubel shall not review the content and legal aspects of the artwork provided by the purchaser, in particular with regard to possible conflicting rights of third parties. This shall be the sole responsibility of the purchaser. In this respect, the purchaser assures Faubel that it has the necessary rights which Faubel requires to fulfil its contractual obligations and shall indemnify Faubel from any claims by third parties.
IX. Custody, insurance
- Templates, raw materials, print carriers and other objects serving for reuse as well as semi-finished and finished products shall only be stored temporarily free of charge by prior agreement. By agreement, semi-finished and finished products shall be stored free of charge for a maximum of 26 weeks (182 calendar days). In addition, the costs per euro pallet and month or part thereof amount to 10.00 EUR. The maximum storage period is 52 weeks (364 calendar days), after which the goods are automatically delivered and invoiced without prior notice. In the case of overprinting, semi-finished and finished products are stored free of charge for a maximum of 104 weeks (728 calendar days) by agreement. The purchaser will receive a notification in due time before the expiry of this period and will be asked to comment on how the goods are to be handled. Faubel is only liable for deterioration, damage or loss of the stored products in the event of intent and gross negligence.
- The above-mentioned items shall be treated with care, insofar as they have been provided by the purchaser.
- If the above-mentioned objects are to be insured, the purchaser shall arrange for the insurance himself.
X. Periodical work
- Contracts for regularly recurring work can only be terminated with at least 3 months' notice to the end of a month.
- The contract period for domain, hosting, servers or other services, where the billing takes place in recurring cycles, is 12 months, unless otherwise agreed upon. In any other case, the notice period is 4 weeks until the end of the respective current billing period.
XI. Title, Copyright
- Faubel reserves the copyright and the right to reproduce the drafts, sketches, final artwork, originals, samples, films, print media, calculations etc. of the purchaser, unless expressly agreed otherwise in writing. The purchaser may not reproduce Faubel's documents or make them available to third parties, unless Faubel declares its consent in writing.
- Any printing tools and printing documents, in particular drafts, final artwork and punches, produced by Faubel, shall remain Faubel’s property even if the purchaser has been charged for the costs thereof. After the last delivery, they will be stored for a maximum of 10 years and then destroyed without special notification.
- Oral collateral agreements shall only become effective if they are confirmed in writing by Faubel. This shall also apply to any amendment of these provisions.
- Faubel is entitled to process personal data within the framework of the GDPR and the Federal Data Protection Act in its currently valid version.
XII. Imprint / References
Faubel may refer to its company on the contractual products in a suitable manner without the consent of the purchaser. The purchaser can only refuse such consent if he has a predominate interest in doing so.
XII. Place of performance, place of jurisdiction, effectiveness
- Place of performance and exclusive place of jurisdiction for all claims and legal disputes arising from the contractual relationship, including proceedings based on bills of exchange and documentary evidence, is the respective registered office of Faubel.
- Any invalidity of one or more provisions shall not affect the validity of the remaining provisions.
Faubel & Co. Nachf. GmbH, Schwarzenberger Weg 45, D-34212 Melsungen