General Terms and Conditions of
Wilhelm Frauenhoff GmbH & Co. KG
In der Fleute 81-89 | 42389 Wuppertal
1.1 These general terms and conditions of sale and delivery apply to all contracts for the supply of products and services concluded between Fahnen Herold W. Frauenhoff GmbH & Co. KG ("FAHNEN HEROLD") with customers who are, as defined by § 14 BGB, a legal entity or special fund under public law.
1.2 Any contradictory terms and conditions of the customer will not apply, even if they are not expressly rejected by FAHNEN HEROLD.
2. Conclusion of contracts
2.1 Quotations submitted by FAHNEN HEROLD are subject to confirmation. A contract does not come into effect until the relevant order has been confirmed in writing or executed immediately by FAHNEN HEROLD.
2.2 All agreements which are concluded between FAHNEN HEROLD and the customer with regard to the execution of a contract are to be recorded in writing in the relevant contract or in an amended contract. Any cancellation or amendment will apply only to the relevant contract.
3. Services to be provided by FAHNEN HEROLD
3.1 The scope of the services to be provided by FAHNEN HEROLD is defined by the specific contract.
3.2 The details provided in quotations or order confirmations by FAHNEN HEROLD in relation to its products, in particular the illustrations, descriptions and drawings contained in printed matter, serve only to designate the goods and are only generally descriptive, unless they have been expressly described as binding by FAHNEN HEROLD. Insofar that limits on permitted divergences have been expressly described in the order confirmation and agreed as such, deviations which are standard for the industry (manufacturing tolerances) will be permitted.
3.3 The characteristics of the goods as described by FAHNEN HEROLD in its quotations, order confirmations and the accompanying documentation do not constitute a warranty. Warranties require written form and are expressly described as such.
3.4 FAHNEN HEROLD reserves the right of ownership and copyright to all illustrations, designs, structures, drawings, samples and similar materials or documents. Without the express permission of FAHNEN HEROLD these must not be made available to third parties. All illustrations, designs, structures, drawings, samples and similar materials or documents which are supplied with quotations are to be returned unprompted to FAHNEN HEROLD. Any lithographs, printing blocks, files, patterns, drawings, films or data media created in connection with the execution of the order remain the property of FAHNEN HEROLD. This also applies even if the party placing the order has paid part of the cost of these.
3.5 Excess or short deliveries of up to 10%, and of at least one piece, caused by print production operations will be accepted by the party placing the order.
4.1 The products and services of FAHNEN HEROLD are supplied on the basis of the FAHNEN HEROLD price list which applies at the time the order is confirmed. If there is any increase in the cost of materials, energy and labour between the date of the order confirmation and the delivery, even in the case of call-off orders, and if such an increase leads to a change in purchasing prices or operating costs of FAHNEN HEROLD, FAHNEN HEROLD will have the right to adjust its price accordingly. FAHNEN HEROLD will inform the customer about the price change without delay. Within eight days after receiving this notification the customer will have the right to withdraw from any part of the order which has not yet been implemented, unless FAHNEN HEROLD confirms within eight days after receiving the customer's declaration of withdrawal that delivery will be made at the originally agreed price.
4.2 All prices are quoted ex works and do not include VAT, packing or insurance.
5.1 All invoices are payable in euros and, in the absence of any agreement to the contrary, will be payable in full without deduction of any cash discount immediately after receipt of the invoice and the delivery.
5.2 For deliveries within the European community the customer must provide his VAT ID number to FAHNEN HEROLD, together with all documents required as proof of tax-exempt delivery within the EU (receipts, confirmations of receipt etc.). If FAHNEN HEROLD has to make a subsequent payment of VAT as a result of incomplete or incorrect information provided by the customer, FAHNEN HEROLD will have the right to debit this amount of the customer. If any incorrect or incomplete information is the fault of the customer, the customer will be obliged to compensate FAHNEN HEROLD for the resulting loss.
5.3 Bills of exchange and cheques will only be accepted with the express agreement of FAHNEN HEROLD and always only on account of payment. The day on which FAHNEN HEROLD is in receipt of the full invoice value will be regarded as the date of receipt of payment. Any costs and discounting charges for the bill of exchange will be payable by the customer.
5.4 If payment is not made by the due date as specified in Section 5.1 interest will be charged on arrears at the level of 8% above the base rate in accordance with § 247 BGB (German Civil Code). In addition FAHNEN HEROLD reserves the right to claim further damages for delayed payment.
5.5 FAHNEN HEROLD reserves the right to demand an advance payment or security to the level of the invoice value if, after a contract has been concluded, justified and significant doubts arise about the customer's financial solvency and creditworthiness, which could jeopardise payment of the invoice. If the advance payment or security is not provided within two weeks from the demand being made FAHNEN HEROLD will have the right to withdraw from the contract without setting any further deadline. This is without prejudice to the right to assert further claims.
The customer will only be able to set off counter-claims against those asserted by FAHNEN HEROLD if such claims are undisputed or have been confirmed by a court of law. The customer will only have a right of retention in respect of claims under the same contract which are undisputed or have been confirmed by a court of law.
7.1 In the absence of any other agreement delivery will be implemented ex works. The customer will be responsible for the transport costs. The route and means of transport will be decided by FAHNEN HEROLD. If in exceptional cases FAHNEN HEROLD meets the transport costs this will not affect the time of the transfer of risk. The goods will only be insured at the express wish and expense of the customer.
7.2 If international commercial terms are applied, the version of the Incoterms which is valid when the contract is concluded will apply.
7.3 FAHNEN HEROLD will have the right to make part deliveries where these will not be unreasonable for the customer.
7.4 After the customer has been informed that the goods are ready for shipping they must be called off or collected without delay and at the latest within 14 days. If dispatch of the goods is delayed for reasons which are due to the customer, the transfer of risk will take place on the date on which the customer is notified that the goods are ready for dispatch. The customer will be responsible for all costs arising after the transfer of risk.
7.5 If the customer fails to take delivery of the goods FAHNEN HEROLD can give him an extension period of eight days and, if this period expires without success, withdraw from the contract and claim damages instead of performance.
7.6 Periods and dates of delivery must be agreed in writing. Periods of delivery begin one week after receipt of the order, and in the event of an express confirmation of order, on the date this reaches the customer. Such periods have been complied with if the goods have been dispatched or the customer has been informed of their readiness for dispatch before the date of expiry.
7.7 Meeting the delivery period is subject to the customer fulfilling his contractual obligation, in particular the provision in good time of any basic material to be provided by the customer and made available to FAHNEN HEROLD as well as any documents, permits, approvals etc. In addition delivery periods and dates will be extended by whatever period the customer is in arrears with an agreed advance payment or the provision of a letter of credit.
7.8 Meeting delivery periods is also subject to correct and punctual supply on the part of FAHNEN HEROLD's suppliers. In addition the delivery period will be extended for a reasonable time in the event of force majeure and other events over which FAHNEN HEROLD has no control and which make delivery significantly more difficult or even impossible, such as operational disruptions, transport delays, strikes, legal lockouts and measures taken by the authorities. This also applies if such circumstances of force majeure affect FAHNEN HEROLD's own suppliers.
7.9 f it is not possible to foresee when any obstacle to performance as described in Sections 7.7 and 7.8 will come to an end, FAHNEN HEROLD will have the right to withdraw from the contract.
8. Retention of title
8.1 The goods supplied ('goods subject to retention of title') will remain the property of FAHNEN HEROLD until all outstanding payments arising from the business relationship with the customer have been made to FAHNEN HEROLD.
8.2 In the case of open account transactions the retention of title represents security for FAHNEN HEROLD's claims on the balance of the account
8.3 The customer may only sell the goods subject to retention of title in the normal course of business. The customer hereby assigns to FAHNEN HEROLD all his rights and claims arising from the sale of the goods subject to retention. FAHNEN HEROLD hereby accepts the assignment. Until determined otherwise by FAHNEN HEROLD the customer is authorised to collect in his own name the claims he has assigned. This is without prejudice to the right of FAHNEN HEROLD to collect such claims itself. FAHNEN HEROLD can withdraw the customer's authorisation to collect such claims if it learns of circumstances which could have the effect of significantly diminishing the creditworthiness of the customer or if the customer is in arrears with his payments. At the request of FAHNEN HEROLD the customer has the obligation to inform any third party that his claims have been assigned to FAHNEN HEROLD. The customer will also provide FAHNEN HEROLD with any information and documents required to enable FAHNEN HEROLD to assert its rights against such a third party.
8.4 Any processing or manufacture of the goods subject to retention will always be implemented on behalf of FAHNEN HEROLD as the owner of the goods. If the goods are processed or combined or mixed with other goods by the customer, FAHNEN HEROLD will acquire part ownership of such goods to the extent to which the proportion of the invoice value of the goods subject to retention of title corresponds to the value of the other goods used by the customer at the time of such processing, combining or mixing. If the goods subject to retention of title are combined or mixed with a main product of the customer or a third party, the customer hereby assigns his rights to the new product to FAHNEN HEROLD. If the customer charges a third party for combining or mixing the goods subject to retention of title with the main product of this third party, he hereby assigns to FAHNEN HEROLD his claims on the third party for payment. The customer also assigns to FAHNEN HEROLD any claims which arise against the third party from combining the goods subject to retention of title with real estate property. FAHNEN HEROLD hereby accepts the above assignments.
8.5 The customer has no right to dispose over the goods subject to retention of title in any way other than has been described above. This applies in particular to pledging the goods or using them as security.
8.6 The customer agrees to inform FAHNEN HEROLD in writing without delay if the goods subject to retention of title are attached or otherwise claimed by a third party and will inform such a third party that the goods are subject to retention of title.
8.7 The customer has the obligation of looking after the goods subject to retention of title carefully and to insure them adequately at his own cost against theft, destruction or damage.
8.8 If the value of the security held by FAHNEN HEROLD exceeds its claims by more than 10%, FAHNEN HEROLD will have the obligation at the request of the customer to release such security at the discretion of FAHNEN HEROLD to the equivalent extent.
8.9 If FAHNEN HEROLD – for whatever reason –has the right to withdraw from the contract and if FAHNEN HEROLD asserts this right, FAHNEN HEROLD will be able to take back the goods subject to retention of title and set off any earnings from the disposal of such goods against its claims on the customer.
8.10 If goods subject to retention of title are supplied to a customer abroad the above Sections 8.2 – 8.9 will not apply. Only Section 8.1 will apply.
8.11 If the laws of the state in which the goods subject to retention of title are located or in which they have been processed do not have any provision for retention of title, the parties hereby agree that the closest form of security which exists in accordance with the laws of the country concerned will apply instead.
9. Defects/manufacturing tolerances
9.1 In relation to defects the customer is subject initially to the statutory obligations of inspecting the goods and reporting any defects in accordance with § 377 HGB (German Commercial Code).
9.2 The customer will not acquire any rights on the basis of material or technical defects which do not affect the value and suitability of the goods to an extent identifiable by FAHNEN HEROLD, or only affect them to an insignificant extent.
9.3 For technical production reasons it is not possible to meet specifications with regard to colour and dimensions with 100% precision. Minor divergences – in particular in the case of halftone printing – in colours and the display of the design are unavoidable and the parties agree that these will not be regarded as defects. Unless expressly agreed otherwise FAHNEN HEROLD will have the right for production reasons to diverge to a tolerance of +/- 5 % from the agreed dimensions.
9.4 We expressly point out that flags are subject to natural wear and tear and that the durability and condition of the flags very much depends on their correct handling and care. In this respect we refer to our instructions with regard to treatment and cleaning. No liability is accepted for damage which arises from failure to observe these instructions.
9.5 If the goods have a defect when the risk is transferred FAHNEN HEROLD will have the right and obligation of supplementary performance. At the discretion of FAHNEN HEROLD such supplementary performance can take the form of remedying the defect or a replacement delivery, provided that the customer can reasonably be expected to accept this. The cost of supplementary performance, in particular the cost of transport, travel, processing and materials will be at the expense of FAHNEN HEROLD. § 439 Section 3 BGB will continue to apply. FAHNEN HEROLD will have the right to make the supplementary performance dependent on payment of the due purchase price by the customer. However, the customer will have the right to withhold that part of the purchase price which corresponds to the value of the defect.
9.6 If the supplementary performance is not successful, if the customer cannot reasonably be expected to accept it, if it is not implemented within a reasonable period of time specified by the customer or if its fulfilment is refused, the customer will have the right at his own discretion to withdraw from the contract, to demand a reduction in the purchase price corresponding to the value of the defect or, within the limits of Section 9 below, to demand compensation instead of performance.
9.7 The application of § 478 BGB will not be affected by sections 9.2 – 9.5.
9.8 If the operating and maintenance instructions of FAHNEN HEROLD are not followed by the customer, if parts are replaced or materials used which do not meet the original specifications, or if the goods are handled by unqualified personnel, the liability of FAHNEN HEROLD will be excluded to the extent that the defects have resulted from any of the above factors. If there is a defect and if one of the above cases applies, the customer has the obligation to prove that the defect was not the result of one of the above causes.
10. Other liability
10.1 Unless stated otherwise in these terms and conditions including the provisions below, FAHNEN HEROLD will be liable in accordance with the applicable statutory provisions in the event of any breach of contractual and non-contractual obligations.
10.2 FAHNEN HEROLD will be liable to provide compensation – irrespective of the legal basis –if it is guilty of premeditated wrongdoing and gross negligence. In the event of simple negligence FAHNEN HEROLD will only be liable
a) for damage to life, limb or health,
b) for damage arising from the breach of a significant contractual obligation. In this case, however, the liability of FAHNEN HEROLD is restricted to providing compensation for foreseeable damage which typically occurs. A significant contractual obligation is defined as an obligation without which the purpose of the contract cannot be fulfilled and the fulfilment of which the other party expects and has a right to expect.
10.3 Any other claims by the customer based on the contract or in tort are excluded. As a result FAHNEN HEROLD specifically does not accept liability for damage which does not affect the goods themselves, loss of profit or other financial damage suffered by the customer.
10.4 The limitations on liability arising from the above Sections 10.2 and 10.3 do not apply insofar as FAHNEN HEROLD has deliberately concealed a defect or provided a warranty that the goods will have specific characteristics. The same applies to claims by the customer on the basis of product liability legislation. Declarations on the characteristics of FAHNEN HEROLD's products only represent a warranty if FAHNEN HEROLD has expressly described them as such.
10.5 Insofar as the liability of FAHNEN HEROLD is excluded or limited this also applies to the personal liability of FAHNEN HEROLD's employees, representatives and those acting on its behalf.
11. Period of limitation
11.1 Without prejudice to the application of §§ 438 No. 2, 479 BGB, the customer's claim to supplementary performance becomes subject to the statutory period of limitation one year after the delivery of the goods. Correspondingly the right to withdraw from the contract and claim a reduction in the purchase price are excluded in accordance with the statutory provisions.
11.2 Without prejudice to the application of §§ 438 No. 2, 479 BGB, the period of limitation on claims for damages is one year.
11.3 With regard to claims based on product liability legislation or cases of deliberate wrongdoing and gross negligence the period of limitation is as prescribed by the applicable statutory provisions.
12. Goods produced to customer specifications
12.1 Where goods are produced on the basis of customer drawings, samples and other instructions FAHNEN HEROLD accepts no liability for the functional suitability of the product and any defects which arise from the customer's instructions.
12.2 The customer hereby indemnifies FAHNEN HEROLD against any claims on the part of third parties, including claims on the grounds of product liability, which result from goods produced in accordance with customer specifications, unless FAHNEN HEROLD is responsible for the damage.
12.3 The customer warrants to FAHNEN HEROLD that the manufacture and supply of any goods produced to his specifications will not infringe the property rights of third parties. The customer will compensate FAHNEN HEROLD for any damage sustained as a result of the assertion of property rights and indemnify FAHNEN HEROLD against any claims by third parties on the basis of infringement of such property rights, unless the infringement of these property rights has been caused by the production methods used by FAHNEN HEROLD.
12.4 FAHNEN HEROLD will have the right to photograph and film the products which have been made to customer specifications both during and after production.
12.5 FAHNEN HEROLD will have the right to withdraw from the contract if any object which has been submitted for processing by the customer cannot be processed or can only be processed with disproportionate difficulty. If the difficulty of such processing cannot be established until the corresponding testing is implemented, the customer will be responsible for reimbursing FAHNEN HEROLD for the cost of the testing.
13. Advertising based on the cooperation
FAHNEN HEROLD will have the right to advertise its cooperation with the customer, in particular with the completed products which have been manufactured on behalf of the customer, and in the process to make use of the customer's company name and its brand name and/or logo for its own advertising purposes. The customer can refuse permission for such use for advertising purposes in writing.
14. Place of fulfilment/place of jurisdiction/applicable law
14.1 The place of fulfilment for both delivery and payment is Wuppertal.
14.2 The place of jurisdiction for any disputes about the validity, origin and termination of the individual contracts between the customer and FAHNEN HEROLD as well as all rights and obligations arising from these contracts is Wuppertal. In addition FAHNEN HEROLD will also be able to institute legal proceedings at the customer's general place of jurisdiction.
14.3 All legal relationships between the customer and FAHNEN HEROLD are subject to those laws of the Federal Republic of Germany which apply to legal relationships between parties which are both located within Germany
15. Concluding provisions
15.1 Declarations and notices provided by the customer will only be valid if they are made in writing. Any additions and/or changes or the cancellation of the entire contract will only be effective if made in writing. The same applies to any change to or waiver of this requirement specifying written form.
15.2 In accordance with § 33 of Federal Data Protection legislation it must be pointed out that FAHNEN HEROLD saves the data which is received in connection with its business relationship with the customer.
15.3 If any provision of the contract concluded between the customer and FAHNEN HEROLD or any provision of these general terms and conditions of sale and delivery is found to be invalid or if any contingency has not been covered, this will not affect the validity of the remaining provisions. Instead of the invalid provision or the contingency which has not been covered, whatever legally valid provision comes closest to the intention of the contracting parties or what they would have intended in relation to the purpose of the contract if the contingency had been foreseen will apply.