General Terms and Conditions of Mayer-Kuvert-network GmbH and its affiliates
Section 1 Scope of application – form
(1) Our General Terms and Conditions of Delivery and Payment (hereinafter “Terms and Conditions”) apply exclusively; any of the customer’s conditions that contradict or differ from these Terms and Conditions shall not become part of the sales agreement unless we have expressly agreed to them in writing, even if we do not object to them explicitly. Our Terms and Conditions shall remain valid even if we deliver an order to the customer or accept payment for it without reservation, or even if we are aware that the customer has terms that contradict or differ from our own. Individual contractual agreements shall take precedence over our Terms and Conditions. (2) Our Terms and Conditions shall apply to all future business with the customer even if there is no explicit reference to them in every case. (3) Our Terms and Conditions also apply to all orders placed through our webshop and in particular for print orders. (4) Our Terms and Conditions are valid only in relation to entrepreneurs as defined in Section 14 German Civil Code (Bürgerliches Gesetzbuch, BGB), legal entities governed by public law and special funds under public law. (5) Where the provisions below require written form (with signature), this includes text form unless text form is explicitly excluded. (6) The Terms and Conditions in force on the date on which the agreement is concluded shall prevail.
Section 2 Conclusion of the agreement
(1) Our quotations are non-binding and subject to alteration. The presentation and marketing of items, including but not limited to those in our catalogue, does not constitute a legally binding offer to conclude any sales agreement. (2) Placing an order by telephone, fax, email or in another written form constitutes a legally binding order. The order is binding for two (2) weeks after it is placed. An order is also made if you place a print order. (3) Orders shall be deemed binding contractual offers and shall then be deemed accepted only if the customer receives an order confirmation from us in text form or if we fulfil the orders within a reasonable period of time after receiving them. In this case, the invoice shall be deemed the order confirmation.
Section 3 Artwork – tools
We reserve the title and copyright to all printing documents, cutting equipment, tools, clichés, lithographs and similar items that the customer has not itself provided. Such items may not be made available to third parties, unless we have given express prior consent in writing allowing transfer to third parties. The customer may purchase such items under a separate sales agreement.
Section 4 Prices – shipping costs – guarantee – payment terms – payment default
(1) Unless otherwise specified in the order confirmation, all our prices are “ex works” (EXW, Incoterms 2010), excluding packaging, freight, postage, insurance, pallet fee and any other shipping costs, plus VAT. (2) Notwithstanding the provisions in paragraph 1, we shall bear the costs for shipping orders with a minimum net order value of EUR 250 (ex. VAT and pallet fee) to the general cargo-receiving station nearest to the recipient’s address in Germany, not including overland freight costs. The same applies for deliveries using our own company haulage for our own account. The customer shall bear any costs exceeding the general parcel service rates for postal, fast or express delivery. (3) Our price lists and quotations, including in catalogues, sales materials and on the internet, are not binding. The prices valid on the day the order confirmation is issued shall apply, unless a different price is stated on the order confirmation. The prices stated on the order confirmation shall remain valid for a maximum of two (2) weeks after the customer receives the quotation, provided that the information on which the quotation is based remains the same. The contracting parties shall be entitled and obligated to renegotiate prices if the costs or expenses for production, storage and transport increase or decrease significantly in the period between issuing the order confirmation and delivering the order, including but not limited to changes in taxes, duties, or costs of raw material and other materials, or if the customer changes the specifications, or in the event of exchange rate fluctuations. If negotiations prove unsuccessful, either of the contracting parties shall be entitled to withdraw from the agreement in full or in part. (4) If custom-made papers or special formats are to be processed, we reserve the right to process and charge for the full quantity supplied by the paper manufacturer. If partial quantities are ordered, our general policy is to deliver and charge for the smallest unit of original packaging. (5) Partial deliveries may be invoiced separately. If we make partial deliveries at the customer’s request, we shall be entitled to charge for any additional costs that these deliveries incur. (6) We reserve the right to request advance payment or a security in the amount of the invoice value for a delivery if, after the agreement has been concluded, circumstances arise or we become aware of such circumstances that may compromise the collection of our outstanding debts. If the customer does not pay in advance or provide a security within a reasonable period following our request, we shall be entitled to withdraw from the agreement. (7) Outstanding debts are due for payment upon delivery (or pro rata in the event of a partial delivery), unless the contracting parties have agreed alternative arrangements. (8) Unless the order confirmation states otherwise, the net purchase price must be paid (without any deduction) within thirty (30) days after becoming due, starting on the invoice date. We offer a 2% cash discount on payments made within 14 days of the invoice date; this offer does not apply for new customers. The discount agreement does not apply to freight, postage, insurance or other shipping costs. If the customer defaults on payment, we shall be entitled to demand interest for late payment in the amount of 8% above the relevant base rate p.a. (9) Notwithstanding any other rights we may have, if the customer defaults on payment we shall be entitled to withhold any other outstanding delivery due under this agreement, or any other similar contract arising from the business relationship with the customer, until payment of the purchase price is received in full. (10) The customer shall have recourse to the right to offset and the right to retention only if the customer’s counterclaims are undisputed, legally established and are acknowledged by us. Cheques, bills of exchange or assignment of receivables to third parties shall be accepted only on account of order fulfilment if special arrangements have been made in advance, and not in lieu of fulfilment. Acceptance of any of these does not constitute an extension to the payment term for the original receivable. The customer shall bear the cost of discount charges and stamp duties, which the customer shall pay as soon as it receives the notice to do so.
Section 5 Delivery – transfer of risk – shipping
(1) Unless expressly agreed otherwise in the sales agreement or order confirmation, the purchased item shall be shipped “ex works” (EXW, Incoterms 2020), where the place of delivery is also the location for any subsequent deliveries. We will also ship items to another destination on the customer’s request and if the customer bears the costs for doing so (mail order purchase). Unless agreed otherwise, we will choose the shipping method, route and carrier at our discretion. (2) The risk of loss or damage to the purchased item shall transfer to the customer once we notify the customer that the item is ready for pick-up or that the item has been passed to the forwarding carrier for shipping. For contracts involving the carriage of goods, the risk of accidental loss and accidental deterioration of the goods, including the risk of delay, shall pass to the forwarding agent, carrier or other person or establishment assigned the task of shipping the goods, from the point that the goods are handed over for shipping. Acceptance is essential for the transfer of risk to place insofar as it has been agreed. In addition, the statutory provisions of German law in respect of contracts for services shall apply for an agreed acceptance. If the customer defaults on acceptance, this shall be deemed equivalent to delivery or acceptance.
Section 6 Delivery period – rights in the event of delay
(1) Unless otherwise agreed, the order confirmation in text form shall be authoritative for the delivery period. A binding agreement on all details characterising the purchased item, including but not limited to receipt of the approved proofs for printed items, shall be required for our specified delivery period to begin. If this delivery period is suspended due to the customer’s actions, we shall be entitled to set a new appropriate delivery period by notifying the customer. (2) Delivery periods specified in documents other than the order confirmation are not guaranteed. If such delivery periods are not adhered to, this shall not give rise to any claim for damages. (3) The fulfilment of our delivery obligation is subject to the timely and proper fulfilment of the customer’s obligations. (4) Partial deliveries are permitted. (5) In the event delivery is delayed, the customer shall be entitled to withdraw from the agreement if a reasonable extension that has been set for us in writing expires without delivery having been made. It shall not be necessary to set an extension if we finally and definitively refuse delivery, if a fixed date for delivery was agreed (Section 323 para. 2 no 2 BGB; Section 376 German Commercial Code (Handelsgesetzbuch, HGB)), or if there are particular circumstances that justify the immediate withdrawal from the agreement after considering the mutual interests of the parties. (6) If the customer claims for damages due to delay in delivery, our liability shall be limited to foreseeable, typically occurring damages to the extent that we are not accused of any intentional breach of contract.
Section 7 Obligations of the customer – default on acceptance
(1) If the customer violates its obligation to accept the purchased item or other duties to cooperate, we shall be entitled to claim for any damages incurred, including any additional expenditure, including but not limited to storage costs. We shall also be entitled to charge for the purchased item. (2) If no other dates are expressly agreed, call-off orders must be requested within six months. If the customer does not request delivery of the full order within this period, it shall be deemed a violation of the customer’s obligation to accept delivery of the quantities still to be requested. In this case, our rights shall be those stated under paragraph 1 above. (3) Provided that the prerequisites under paragraphs 1 or 2 are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time it fails to accept the item or defaults on the payment of debts. We reserve the right to make any further claims.
Section 8 Force majeure
(1) If force majeure renders it impossible or unreasonably difficult for us to fulfil our contractual obligations, such obligations shall be suspended until the impediment is removed. This shall still apply even if we are already late in fulfilling these obligations. We are obliged to notify the customer immediately when such an instance of force majeure begins and ends. If such an impediment persists for longer than three months, each party shall be entitled to withdraw from the agreement; this shall not affect any statutory rights of withdrawal. (2) Force majeure as stated in paragraph 1 covers external, unforeseen and unavoidable impediments such as labour disputes, acts of God, shortages of raw materials or energy, fire, war and riots, or other occurrences for which we are not responsible, irrespective of whether they occur at our own company or at another which is critical for the manufacture or transport of the purchased item. (3) Force majeure is particularly an epidemic and pandemic. In these cases, the regulations from paragraph (1) also apply.
Section 9 Retention of title
(1) We retain the title to the purchased item until all and any receivables from our ongoing business relationship with the customer are paid in full. (2) The customer must handle the purchased item with care during the period of retention of title. (3) The customer must inform us in writing immediately if the purchased item is distrained or otherwise subject to interference by third parties so that we can take legal action in accordance with Section 771 German Code of Civil Procedure (Zivilprozessordnung, ZPO). If the third party is unable to reimburse the court and out-of- court costs incurred by our pursuit of legal action under Section 771 ZPO, the customer shall be liable for any losses incurred by us. (4) The customer shall be entitled to sell the purchased item in the ordinary course of business; however, the customer hereby assigns to us all receivables to the amount of the final invoice total (VAT- inclusive) that result from the sale to its customers or third parties, irrespective of whether the purchased item has been processed prior to selling. We shall accept such assignment. The customer shall still be entitled to collect the receivables after this assignment. This does not affect our authority to collect the receivables ourselves. However, we undertake not to collect the receivables as long as the customer fulfils its payment obligations arising from the proceeds collected, it is not in default of payment, and in particular there has not been any petition filed to initiate insolvency proceedings or payments have not been stopped. Should the latter be the case, however, we may request that the customer informs us of the assigned receivables and their debtors, that it provides us with all the information necessary for collection and all related documents, and informs the debtors (third parties) of the assignment. (5) Any processing or alteration of the purchased item by the customer shall always be carried out on our behalf. If the purchased item is processed with other third-party items, we shall acquire partial ownership of the new item in the ratio of the value of the purchased item (VAT-inclusive invoice total) to the other processed items at the time of processing and at the processed value. The customer shall keep safe on our behalf the resulting item in our sole or joint ownership, free of charge. Otherwise, the same applies to the item produced that applies to the purchased item delivered under retention of title. (6) Paragraph 5 shall apply if the purchased item is mixed or inseparably joined with other third-party items, provided that it is deemed agreed that the customer shall assign proportionate ownership to us if the purchased item is mixed or joined in a way that the customer’s item is to be considered the principal item. (7) We undertake, upon the customer’s request, to release the securities to which we are entitled and which are assigned to us if the value of these securities exceeds the receivables to be secured by more than 10%; it is at our discretion to choose the securities to be released in consideration of the customer’s legitimate interests.
Section 10 Quality – your rights in the event of defects
(1) We will execute the order in accordance with the general state of the art, taking into account the tolerances that are technically necessary with regard to the material and the process, and ensuring merchantable quality. We reserve the right to reject products, as is standard in the industry, and to deviate within typical tolerances in respect of colour, weight and material composition. In the case of custom-made products, deviations in quantity of up to 10%, or up to 20% for deliveries of less than 25,000 pieces, are also normal. This also applies to orders based on samples. Punching and folding variations of up to +/-1–2 mm will inevitably occur as a result of the technology used to produce the goods; we expressly reserve the right to dispatch products exhibiting these kinds of variations, which do not constitute defects and shall not justify any warranty claims relating to defects. (2) The customer shall be obliged to check the print and/or design templates provided, sign and return them and add any corrections clearly and unambiguously. Unless a galley proof is requested, the signed print and/or design templates shall determine the agreed quality. (3) If the customer placed a print order in the online shop (§ 3a), the customer is obliged to check the print file himself. Since no proof will be made, the customer is obliged to check the print data for correctness before uploading it. In this respect, the customer can only claim a defect if the subject of the contract deviates not only slightly from the print file created and uploaded by the customer. (4) The customer’s warranty rights are subject to the prerequisite that it has properly complied with its obligations in terms of the inspection of the goods, and the requirement to give notice of defects pursuant to Section 377 HGB. The customer shall allow us to examine the purchased item claimed as defective, subject to notice and during standard business hours. (5) For self-adhesive envelopes, we offer a warranty of six (6) months for the functionality of the self-adhesive strip, contrary to the standard warranty. (6) If a defect in the purchased item is present upon the transfer of risk (Section 5 para. 2), we may, at our discretion, choose whether to correct the defect or deliver a defect-free replacement product to remedy the issue. If the correction of the defect and the delivery of a defect-free replacement are both associated with unreasonably high costs, we shall be entitled to refuse to remedy the defect. (7) The customer’s right to withdraw from the agreement or to demand a reduction of the purchase price shall be governed by the applicable statutory provisions. (8) Section 12 shall apply in respect of claims for damages.
Section 11 Claims for damages – extent of liability
(1) In all cases other than that of default (Section 5), our liability for damages – whether pertaining to contractual or non-contractual claims – shall be governed exclusively by the conditions set forth below. (2) If we have fraudulently concealed a defect in the purchased item or have assumed a guarantee for the quality of the purchased item, we shall be liable for damages in accordance with the statutory provisions. (3) Furthermore, we shall be liable in accordance with the statutory provisions for damages arising from loss of life, limb or health based on a negligent or intentional breach of duty on our part, including our representatives or vicarious agents. (4) We shall also be liable in accordance with the statutory provisions if the customer asserts claims for damages which are based on either intentional or grossly negligent conduct by us or our representatives or vicarious agents; or on the fact that we have culpably breached an essential contractual obligation. Unless we are accused of intentional behaviour, however, our liability for damages in these cases shall be limited to foreseeable, typically occurring damages. (5) Furthermore, we shall also be liable in accordance with the mandatory provisions under product liability law. (6) Furthermore, we shall not be liable in respect of claims for damages. Unless otherwise provided in Sections 2 to 5 above, we shall not be liable for any damage that has not caused in the delivery item itself (particularly lost profit or other purely financial customer losses) or for claims for damages which arise from the violation of secondary duties arising from an obligation or a law but that do not constitute essential contractual obligations (such as inaccurate advice, care or information, design of the packaging or instructions concerning handling), or non-contractual liability claims including product liability pursuant to Section 823 BGB. This shall not affect claims that originated before the conclusion of this agreement. (7) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, staff, co-workers, representatives and vicarious agents.
Section 12 Limitation periods
(1) Claims for the remedying of defects in the purchased item shall become statute-barred after 1 year from the transfer of risk (Section 5 para. 2) unless the customer asserts a claim for fraudulently concealed defects or based on a longer warranty period that we have granted for the quality of a purchased item. (2) If the claim for remedy has become statute-barred, revocation and requests to reduce the sales price of the purchased item are ineffective pursuant to Section 218 BGB. (3) Paragraphs 1 and 2 shall not affect the statute-barring of recourse claims under the provisions governing the purchase of consumer goods (Section 479 BGB). (4) The following shall apply with regard to the statute of limitations for claims for damages: (a) The statutory limitation period is 1 year. (b) For claims pertaining to defects in the purchased item, this period shall begin upon the transfer of risk (Section 4 para. 2). (c) For all other claims, the statutory limitation period shall begin from the time at which the claim arose and the customer became, or could have become, aware of the circumstances on which the claim is based and the fact that we are the liable party. It shall end no later than upon expiry of the maximum statutory periods pursuant to Section 199(2) and (3) BGB. (d) Nevertheless, the respective statute of limitations shall apply for all claims pertaining to gross negligence, the assumption of a warranty, loss of life, limb or health and claims under product liability law
Section 13 Jurisdiction – place of performance – governing law
(1) The exclusive place of jurisdiction for all disputes arising in connection with this agreement and its performance is our registered place of business; however, we shall be entitled to file suit against the customer through the competent court for its registered place of business. (2) Unless otherwise provided in these Terms and Conditions of Delivery and Payment or the order confirmation, the place of performance shall be our registered place of business. (3) The governing law is the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Effective from July 2020