Terms and Conditions - schirmmacher
The following terms and conditions were translated from German. The German text is the only one that has legal value. Here is the original text.
1. SCOPE
1.1 The following terms of delivery and payment (Terms and Conditions, T&Cs) apply to the conclusion and execution of all contracts between us, CST GmbH (schirmmacher.com), and our customers, hereinafter referred to as "Contractual partner".
1.2 Subject to any express agreement to the contrary, our T&Cs shall apply exclusively. The terms and conditions of business and purchase of our contractual partners shall only be accepted if they coincide with our T&Cs or deviate only slightly. As a matter of principle, we do not recognise any terms and conditions of the contractual partner that are contrary to or deviate more than insignificantly from our T&Cs. However, we reserve the right to expressly acknowledge their validity.
1.3 All deliveries and services, in particular consulting services and disclosures, shall be provided exclusively on the basis of the following T&Cs, unless they are amended or excluded upon our express consent.
2. OFFERS AND CONCLUSION OF CONTRACT
2.1 The information on our website does not constitute binding offers. Our offers made in response to your enquiry are subject to change and only become binding when we confirm the order in writing (cf. point 4.2. on written form)
2.2 If the contractual partner believes our order confirmation deviates from their order, they must notify us of this in writing immediately after receiving our order confirmation. Otherwise, the order confirmation shall be deemed correct and shall be binding for both parties.
2.3 We can only process files in vector form or in high resolution to a high-quality print template. If the data quality is not sufficient, it can be prepared by us. Upon request, the contractual partner will receive an offer for this.
3. SUBSEQUENT CHANGES
3.1 Changes to the print template requested by the contractual partner after the order confirmation has become binding shall only be carried out at additional cost and will inevitably result in the delivery period being extended.
3.2 Subsequent changes shall include repetitions of proofs requested by the contractual partner due to only minor deviations from the original.
3.3 Costs already incurred for the processing of the order up to the point at which the change is made, any additional costs still to be incurred as well as the costs of machine downtime caused by the contractual partner’s change request shall be charged.
3.4 The changes must be confirmed by us in writing.
4. WRITTEN FORM CLAUSE
4.1 Declarations made by our employees verbally, by telephone or by fax as well as collateral agreements require our written confirmation in order to be effective.
4.2 Written form within the meaning of these T&Cs always means at least fax or email with a scan of the original document with an original signature.
4.3 The accuracy and completeness of agreements made in writing shall be refutably presumed.
5. CONTRACTUAL PARTNER
5.1 In the case of orders with delivery to third parties, the purchaser alone shall be deemed to be the contractual partner entitled to perform, unless an express agreement to the contrary has been made.
5.2 The contractual partner can only assert warranty claims against us if and insofar as their contractual partner has asserted warranty claims against them. Sections 478 and 479 of the German Civil Code remain unaffected.
6. PRICES
6.1 Our prices are given as net prices in euros. Unless otherwise agreed, the prices shall apply from our factory/warehouse or the factory/warehouse of our vicarious agents plus freight, packaging, postage, insurance as well as the statutory VAT applicable on the date of invoicing.
6.2 The prices stated in our offer shall apply subject to the proviso that the order data on which the offer is based remains unchanged, but no longer than three months from receipt of the offer by the contractual partner.
7. PAYMENT TERMS
7.1 The invoice shall be issued under the date of expiry of the goods or partial delivery. If ordered goods are stored with us or our supplier after completion and before delivery to the agreed recipient, the invoice shall be issued under the date of completion of the goods.
7.2 Our invoices are payable within 14 days of the invoice date, unless otherwise agreed.
7.3 For first-time customers and in justified cases, we reserve the right to deliver only upon receiving cash on delivery or to demand payment in advance.
7.4 In the event of extraordinary preliminary work, we reserve the right to demand a reasonable advance payment.
7.5 Delay in payment occurs if the payment deadline is exceeded. This entitles us to charge interest on arrears from the following day at a rate of 8% above the base interest rate.
7.6 If there is a significant deterioration in the financial circumstances of a contractual partner which gives rise to doubts about their ability to pay, all our claims against them shall become due immediately. We shall then be entitled to withhold our deliveries and services until payment has been made and to set the contractual partner a reasonable deadline for making advance payments or providing securities. After expiry of this period, we are entitled to withdraw from the contract.
7.7 The contractual partner is only authorised to exercise a right of retention if its counterclaim is based on the same contractual relationship.
8. DELIVERY TIMES AND DATES
8.1 Delivery periods shall commence on the date we send our order confirmation, but not before full clarification of the order details and not before receipt of the documents, approvals and releases to be obtained by the contractual partner and receipt of a down payment, if this has been agreed.
8.2 If no delivery dates have been agreed, but a delivery period measured by a certain period of time has been agreed, this period shall commence on the day of approval. The delivery period shall be interrupted for the duration of the inspection of the proofs and print templates by the contractual partner, namely from the day of dispatch to the contractual partner until the day a response is received. If the contractual partner then requests changes which affect the production period, a new delivery period shall commence upon confirmation of the change in writing.
8.3 If we are prevented from fulfilling our delivery duties due to force majeure, industrial action or other unforeseen events which could not be avoided despite reasonable precautionary measures, irrespective of whether they occur in our sales department or at our suppliers, the delivery period shall be extended by the duration of the hindrance as well as a reasonable start-up time after the hindrance is removed, provided we have not caused it intentionally or through gross negligence. This provision does not imply a change in the burden of proof to the detriment of the contractual partner.
8.4 If the hindrance is not expected to end within a reasonable period of time, we shall be entitled to withdraw from the contract in whole or in part. Such a withdrawal shall not affect our claims from partial deliveries already made, unless the contractual partner has no interest in a partial delivery. Our contractual partner shall be entitled to withdraw if we do not declare upon their request whether we will withdraw from the contract or make a delivery within a reasonable period of time.
8.5 In the event of a delay in delivery for which we are responsible, the contractual partner shall only be entitled to assert further claims if a reasonable deadline to be set by them after the occurrence of the delay has elapsed. In this case, the contractual partner may demand compensation for any damage incurred by them as a result of the delay, provided they can provide evidence thereof.
8.6 The delivery period ends when the goods leave the supplying plant or are placed in storage.
9. SHIPPING
9.1 Unless otherwise agreed, we reserve the right to choose the method and means of dispatch.
9.2 Transport insurance shall only be taken out upon special request and at the expense of the contractual partner.
10. OVERT/COVERT DAMAGE
10.1 Within the framework of the German Freight Forwarding General Conditions, if the contractual partner is a merchant, written notification must be given for overt damage and shortages on the freight note, covert damage as well as shortages within one working day after receipt of the goods.
10.2 Our insurance reserves the right to have damage assessed directly on site by an expert.
11. PARTIAL DELIVERIES
11.1 We are entitled to make partial deliveries if these are reasonable for the contractual partner. Where applicable, these shall become due for payment in accordance with these terms and conditions.
12. DEFAULT OF ACCEPTANCE
12.1 If the contractual partner is in default of acceptance, we shall be entitled, after the fruitliness expiry of a reasonable grace period, to dispose of the goods or to supply the contractual partner with a reasonably extended grace period.
12.2 Our statutory rights to withdraw from the contract and to claim damages for non-performance shall remain unaffected.
13. RETENTION OF TITLE
13.1 The delivered goods remain our property until full payment of the agreed purchase price.
13.2 If the contractual partner is a merchant, ownership shall not pass until all ancillary claims associated with the contractual relationship and all other claims owed by the contractual partner arising from the business relationship with us have been paid in full.
13.3 The goods may neither be pledged nor assigned as security before full payment has been made.
13.4 The contractual partner is only entitled and authorised to resell the reserved goods on the condition that they have our written declaration of consent and that they assign the purchase price claim from the resale to us. In the event of resale, the contractual partner hereby assigns to us claims arising from the resale until all our claims have been satisfied.
13.5 The contractual partner shall be obliged, at our request, to immediately provide all information and hand over all documents required to assert our rights against the contractual partner’s customer.
13.6 If enforcement is levied against the contractual partner’s assets and if the goods subject to retention of title are affected by this, we must be informed immediately, stating all the necessary data (enforcement body, file number) and, if necessary, enclosing enforcement records.
14. WARRANTY
14.1 The warranty period is one year for entrepreneurs and two years for consumers from receipt of the goods.
14.2 The statutory liability for defects shall not be affected by the general limitation of liability (point 18 of these T&Cs).
14.3 This shall not affect liability under the Product Liability Act.
15. GENERAL LIMITATION OF LIABILITY
15.1 We shall only be liable for damages which are injurious to life, body and health if they were caused by an intentional or negligent breach of duty on our part or an intentional or negligent breach of duty by one of our legal representatives or vicarious agents.
15.2 We shall only be liable for other damages if they are based on an intentional or grossly negligent breach of duty on our part or an intentional or negligent breach of duty by one of our legal representatives or vicarious agents.
15.3 This shall not affect the strict liability under the Product Liability Act..
15.4 Furthermore, the liability for culpable violation of essential contractual obligations and protective obligations shall remain unaffected. However, liability is limited to the foreseeable damages typical for the contract. Point 18.1 remains unaffected by this limitation.
15.5 A reversal of the burden of proof to the detriment of the contractual partner is not entailed by this provision.
16. DATA OF THE CONTRACTUAL PARTNER
16.1 Data carriers or transmitted data supplied by the contractual partner or by a third party engaged by them are not subject to our audit requirement. This does not apply to data that is obviously unreadable or obviously unprocessable.
16.2 Before transmitting data, the contractual partner shall use state-of-the-art protection programmes against computer viruses.
16.3 We are entitled to make copies of the data for business purposes in the course of fulfilling our contractual obligation.
16.4 Data backup is the sole responsibility of the contractual partner. We are under no obligation to store data for the contractual partner.
16.5 Data and data carriers originating from the contractual partner shall only be archived by us beyond the time of handover of the end product to the customer or their vicarious agents after express agreement and with special remuneration. If the data and data carriers are to be insured, this shall be arranged by the contractual partner themselves, subject to any other agreement.
17. COPYRIGHT
17.1 All copyrighted rights of use to our own sketches and drafts shall remain with us unless otherwise agreed.
17.2 The contractual partner shall be solely responsible for checking the rights to use the texts and images submitted to us for use as a print template. The contractual partner confirms that the reproduction of the print template submitted to us on their behalf does not unlawfully infringe the copyrights, trademarks or other property rights of third parties. In this respect, we shall only be liable for intent and gross negligence.
17.3 The contractual partner shall assume liability if the execution of the order placed with us infringes copyrights or other industrial property rights of third parties. Subject to liability for intent and gross negligence, they shall indemnify us against all claims of third parties due to such an infringement (including costs of legal action).
18. DATA PROTECTION
We collect, store, modify, transmit and use personal data for the purpose of establishing, executing and, if applicable, terminating print orders in order to fulfil our own business purposes using data processing systems. This is hereby expressly indicated.
19. ADVERTISING
19.1 We also reserve the right to use the items manufactured on behalf of the contractual partner as samples or for advertising purposes.
19.2 The contractual partner may object to usage for these purposes at any time.
20. PLACE OF PERFORMANCE, JURISDICTION AND APPLICABLE LAW
20.1 The place of performance for all obligations arising from this contract is Götzis in Austria.
20.2 The exclusive place of jurisdiction for all present and future claims arising from a business relationship with merchants, including claims for bill of exchange and cheque receivables, shall be Feldkirch.
20.3 The legal relations between the parties shall be governed by Austrian law. This shall also apply if the contractual partner has their address, permanent residence or branch abroad.
EU commission platform for resolving online disputes: www.ec.europa.eu/consumers/odr