TERMS AND CONDITIONS
Terms of Purchase
of BrandSourcery GmbH, 1230 Vienna (Austria), Perfektastraße 58/GL 1-02B, FN 425064w Vienna Regional Court, ATU69090459
I. SCOPE OF VALIDITY
All enquiries, orders, quotations, as well as deliveries and services are handled exclusively based on these Terms of Purchase. We already contradict any terms of the Seller differing from our Terms and Conditions (especially T&C). Any deviations from these Terms of Purchase must be agreed in writing.
II. ENQUIRIES, ORDER TAKING
Any quotations addressed to us are binding and free of charge. In his quotation, the Seller must adhere exactly to our enquiry regarding quantity, quality, and design of the products to be delivered, and make us aware of any deviations explicitly and in writing. Order taking occurs in the form of a written order, whereupon the contract comes into force.
In the absence of any other explicit agreements, prices that are quoted to us are inclusive of all duties and additional charges, including shipping costs and transit insurance carriage paid Wels. Prices agreed under the contract are fixed prices. Price escalation clauses and similar are excluded.
IV. DELIVERY (sample dispatch)
Consignments must include all necessary shipping documents. In particular, the name of the person ordering, project number, project name, number of packages, labelling of packages, delivery quantity, and weight of the shipment must be indicated. If the Terms of Delivery are not observed, we are entitled to organise an orderly delivery at the Seller’s expense. All costs incurred in this connection are charged to the Seller. If we cannot arrange for a proper receipt of goods, we, at our option, either take over the goods without engagement or we decline acceptance. Delivery must be effected at the fixed time and in the fixed quantities set forth in the contract of purchase or in the order. Delivery times begin to run as of the order date. Insofar as delivery is delayed, the Seller must inform us immediately in writing. In case of delay in delivery, and regardless of whether or not the Seller is at fault, we may ask the Seller to pay us compensation for delay amounting to 3% of the total order sum per broken calendar week, however, no more than 10% of the contract value, as a penalty for breach of contract. In particular, we are entitled to deduct this compensation for delay from the invoice amount without special agreement or understanding. Furthermore, in the event of a culpable delay of the Seller, we may at any rate decide to cancel the contract without setting an additional time for delivery. In such a case, the Seller is not entitled to assert any claims against us whatsoever. This does not affect any additional claims for indemnification besides aforesaid compensation for all damage caused by the delay in delivery and its adverse effects, no matter of what kind.
Any necessary production samples must be taken from the production line at random. Requested samples must be submitted to us free of charge and in due time. so that in the event of a complaint, further processing and/or packaging and dispatch can be stopped.
V. PERFORMANCE AND PASSING OF THE RISK
The Seller shall bear the shipping costs and risk until proper surrender of the goods by our logistic centre or any delivery point specified by us. Delivery carried paid means delivery inclusive of unloading by the supplier and placement on a pallet on the assigned ramp or in the pallet storage place.
In the absence of any explicit agreement to the contrary, our payment terms are 30 days after receipt of invoice, subject to due receipt and uncontested acceptance of the goods. In case of payment within 14 days of receipt of invoice, we may deduct a cash discount in the amount of 3% of the total net amount.
If payment in partial amounts was agreed, we do not lose our cash discount for timely paid partial amounts even if other partial amounts are not paid within the set time for payment.
VII. RETENTION OF TITLE
The risk and title to the products and services to be supplied by the Seller shall pass to us upon their complete delivery at the place of performance (place of destination). No passing of the risk occurs in the case of partial deliveries and partial performance –even if these were contractually agreed -, as well as when commissioning or using partial deliveries and partially supplied products and services.
We expressly object to an agreement on the Seller’s retention of title. Receipts of products and services offered subject to retention of title have no explanatory value resulting in our consent to retention of title. In the event that our customers have to return products, we are entitled to pass on any shipping and handling costs to the Seller.
The obligation to inspect the goods and notify defects begins at any rate only when all the goods reached our business premises or the agreed place of destination, even if the delivered products were already surrendered to our freight carrier, haulier, or other contractor beforehand. The Seller hereby acknowledges that we duly carry out initial inspection in that, as far as can be reasonably expected, we take samples regarding defects that are detectable without inspection, i.e. which are obvious (e.g. damage in transit) as well as with respect to wrong delivery (identity of delivery item) and excess or short delivery (quantity of delivery items) at the latest within one month. Defects in delivery that appear during the aforementioned inspections must be notified at the latest within a period of one month; defects that cannot be detected at this time must be notified within a period of one month after we heard from the defect. We are released from the obligation to inspect and notify defects immediately, which may have been discovered within the frame of further incoming goods control (e.g. technical functional check). The warranty period for movable goods is 24 months, for immovable goods 36 months. The period begins to run from the delivery of the goods, with the exception of hidden defects whose warranty period only begins to run once the defect was detected. We are, at our option, entitled to ask the Seller to eliminate the defects at his expense and risk in the short term through rectification (repair, addition of what is missing) and/or exchange or to ask for a price reduction, or to send back the goods to the Seller at his expense asking him to perform redhibitory action, or to remove the defects or to supply services that were not supplied or not properly supplied ourselves or to have the aforesaid removed or supplied by a third party at the expense and risk of the contracting party.
In the event of a warranty of title claim, the Seller must carry the burden of proof that the defect did not exist at the time of delivery over the entire warranty period. The Seller also ensures warranty for hidden defects,in which case the warranty period only begins to run once we are fully aware of the defect. In the event of defects of whatever type, we at all events are entitled to retain the entire purchase price or wage until complete removal of the defects. The Seller must bear all consequential damage costs (forwarding, logistics costs, etc.).
IX. DAMAGES, PRODUCT LIABILITY, FORCE MAJEURE
Insofar as we are entitled to damages, and regardless of the degree of fault of the Seller, our claim shall also include loss of profits and compensation for all damage we must compensate our customers for. If, following our acceptance of the consignment, the defectiveness of the supplied products in the meaning of § 5 Austrian Product Liability Act (PHG) becomes apparent, and/or it is acknowledged that the characteristics of the product are no longer up-to-date from a technical and scientific point of view in the meaning of § 8 Product Liability Act (PHG), the Seller undertakes to take back such goods and to fully refund the purchase price. If we get claims due to products supplied by the Seller under the Product Liability Act (PHG), the Seller undertakes to provide any means of evidence required by us, like in particular, quality and inspection documents, attestations, and similar, at his expense. In such a case, the Seller, regardless of any fault on his part, further undertakes to pay compensation for all damage or disadvantages occurred as a result of our liability as well as any associated legal expenses. The Seller undertakes to take up relevant insurance in the meaning of § 16 Product Liability Act (PHG), where we reserve the right to ask the Seller to furnish proof of according compulsory cover. If the Seller does not comply with our request within 14 days, we are entitled to cancel the contract and to demand damages including for loss of profits.
The Seller must notify us immediately of any events of force majeure or other circumstances for which we are not responsible and preventing or reducing the production or dispatch of the subject of the contract ordered by us, and provide suitable solutions. If a solution cannot be provided within the frame of ordering, we are still entitled, regardless of further damage claims, to insist on performance, to change the contract as we consider fair, or to cancel the contract without notice. This shall not give rise to any claims of the Seller. Any unforeseeable circumstance or any case of force majeure preventing, delaying or rendering impossible the timely production, delivery, or our acceptance of the goods, like e.g. official measures, war, strike, lockouts, riots, operational breakdowns, transport disruptions, shortage or delayed distribution of raw materials, other elementary events, etc. entitles us, without having to set an additional time for delivery, to cancel the contract wholly or partly, to unilaterally reduce the agreed delivery quantity or to request the execution of a placed order at a later date, without the Seller being entitled to assert any damage claims against us.
In case of delay in delivery, petition for the opening of insolvency or bankruptcy proceedings or avoidance of bankruptcy for lack of assets or other solvency problems, we are entitled to cancel the contract wholly or partly. All amounts paid in advance must be reimbursed immediately. If the Seller cancels an order, we are entitled to cancel the contract with the Seller. The Seller must notify us immediately of any already incurred costs so we can recover them from our customers. Furthermore, the Seller must ensure that we do not incur any additional costs as a result.
XI. APPLICABLE LAW, LEGAL VENUE, SALVATORY CLAUSE
Only Austrian material law applies to any disputes arising within the frame of our contractual relationships, processing and termination thereof, however, excluding the principles of conflict of law, especially the principles of international private law, insofar as these are subject to the application of foreign law.
In the event that Austrian law prescribes the application of special international material standards, like e.g. UN purchasing rights, also applicable in Austria, they must not be applied. This also applies to any questions concerning the coming into force or the interpretation of the T&C and the contract.
The venue for all legal disputes arising out of or in connection with the existing contractual relationship is exclusively the court competent for the Seller as regards the subject matter for Wels / Austria. However, we are also entitled, at our option, to take legal action against the Seller before any other court that may be competent under national or international law. Should individual provisions of our terms and conditions be invalid or unworkable, this shall not affect the validity of the remaining provisions of these terms and conditions. The contracting parties undertake to agree upon a new provision that comes closest to the intent and purpose of the invalid provision.
XII. COPYRIGHT AND RIGHT OF REPRODUCTION
Insofar as the Seller himself is the owner of the copyright and ancillary copyrights in the supplied products or parts of the same, we acquire the right to distribute the supplied products free of charge upon receipt of the consignment. The Seller warrants that through the contractual utilisation of the delivery items or other services no third party proprietary rights (patent rights, trademark rights, sample rights, copyrights, equipment, product names, know-how, territory protection and similar type of rights, even if, in some cases, an application for their granting has just been submitted) are infringed. We are not obliged to verify whether there are intangible rights attached to the products or whether such rights are infringed, rather we may assume that the Seller is entitled to all rights as are necessary for the proper fulfilment of orders towards third parties. The Seller agrees to hold us harmless from all related third party claims and actions. Notwithstanding further rights on our part, we are in such a case entitled, until clarification of the substantiation of such asserted claims, to refuse acceptance of the goods, to return already accepted goods to the Seller at his expense, and to withhold payment of the total purchase price. If products are jointly developed or further developed, we are solely entitled to all rights to use copyrights and ancillary copyrights.
XIII. REGISTRATION MARKS
The Seller may not apply marks any marks, especially company names, trademarks, or Internet addresses to products and/or packaging used for execution of the order. In case of infringement, the Seller must remove them immediately, failing which we are entitled to have them removed at the Seller’s expense.
XIV. MODIFICATIONS OF SERVICES
We already authorise minor or reasonable changes to our order. If the changes are unreasonable, the Seller must contact us immediately and adjust the contract. If this does not happen immediately, yet within 3 days of notification of the change, the change shall be deemed agreed.
XV. STORAGE OF SEMI-FINISHED/FINISHED PRODUCTS
After realising the order, any remaining stock, cutting dies / forming dies, and similar production-related tools and products are to be stored properly on our behal at no cost. If correct and free storage cannot be ensured, the Seller must seek a suitable solution in collaboration with us immediately.
XVI. SUPPLIER CLASSIFICATION
The Seller undertakes to answer all questions within the frame of audits as accurately as possible. Wrong or incomplete information entitles us to cancel orders that are not yet fulfilled without notice and may result in a negative appraisal as well as a less favourable assessment (ranking), or even entail
XVII. CUSTOMER PROTECTION
Specific customer protection is agreed with the first enquiry. This means that the Seller may not make contact with our customer. If the Seller is already in a business relationship with our customers, this must be notified to us in writing immediately while applying for an exception from customer protection. If we do not grant exception, we are entitled to cancel the contract without setting an additional time and to order from another seller. The cancellation does not entitle the Seller to assert any claims against us.
Customer protection applies until expiry of the year following the most recent contact with us (quotation, order confirmation, invoice). In the event that the Seller acts in breach of these provisions, he must pay a contractual penalty in the amount of € 5,000.
XVI. SOCIAL RESPONSIBILITY AND SUSTAINABILITY
The Seller must observe internationally recognised social and environmental standards, and hereby agrees to undergo an inspection at any time. Observance and improvement of environmental and social standards as well as continuous optimisation of services in this area must be ensured. The Seller hereby confirms to have been granted ISO certification or similar process-oriented quality assurance certification to ensure continuous improvement of the priceperformance ratio and improvement of delivery capacity.
Terms of Sale and Delivery
of BrandSourcery GmbH, 1230 Vienna (Austria), Perfektastraße 58/GL 1-02B, FN 425064w Vienna Regional Court, ATU69090459
I. SCOPE OF VALIDITY
In the absence of an explicit reference, any quotations, order confirmations, deliveries and other services and legal transactions provided by our company occur exclusively based on these Terms of Sale and Delivery. We already contradict any other terms of the Principal differing from our Terms and Conditions. Any deviations from these Terms of Sale and Delivery must be agreed in writing.
II. QUOTATIONS, ORDER TAKING
Our quotations are subject to change without notice, without obligation, and not binding. Any quotations, orders, purchase orders, order changes, order cancellations and other agreements must be confirmed by us in writing to be valid. Silence should not be construed as agreement. The contract shall be deemed concluded upon our sending a written confirmation of order or dispatching the items directly or indirectly, e.g. in the case of a drop shipment.
Our quotations are subject to the reservation of self-supply by our own supplier(s); in the case of a drop shipment, subject to the reservation of the capability to deliver of the producer or supplier. Our Terms of Sale and Delivery apply as framework agreement to all further legal transactions with the Principal (e.g. additional orders), even in the absence of any reiterated explicit agreement on their validity.
Our prices are quoted ex works Vienna or the respective distribution warehouse if not stated other wise in written form and explicitly do not include taxes, charges, customs duties, freight, postal charges, insurance and other shipping costs. Prices only include simple packaging (wrapping) of the products. Any necessary special packaging (e.g. single product packaging) must be ordered and paid for additionally. Prices are determined based on current daily wage, material, and supplier prices. We are entitled to subsequently increase our prices accordingly following a cost increase. For this reason, the Principal shall have no right of cancellation. Subsequent alterations carried out at the initiative of the Principal (e.g. also within the frame of so-called customer and author correction), including resulting machine and production downtimes, are charged to the Principal. Subsequent alterations shall also include repeat print proofs and sample production that are requested by the Principal due to minor differences from the supplied model or his specifications. Any excess of the quotation (cost estimate) caused by alterations of the Principal is also deemed approved by the Principal without notification on our part.
Guaranteed delivery times are subject to a detailed order and due provision of all necessary products, data, and information. We are entitled to execute and charge for partial deliveries. Excess and short deliveries up to 10% are allowed and are setoff and/or credited.
Scheduled shipping dates are deemed kept if the product left the production site in due time or, in the case of self-collection by the Principal, the consignment is ready for dispatch and the Principal was notified in due time.
In the event that the Principal fails to accept the goods as agreed (delay in acceptance), we are entitled after setting additional time for delivery, to store the goods either on our premises, for which we may charge storage fees of 0.5% of the gross invoice amount per calendar day, or in the warehouse of an authorised company at the cost and risk of the Principal, in which case, the delivery shall be deemed completed.
Unless otherwise agreed, deliveries are performed on account and at the risk of the Principal. Transit insurance is only provided at the explicit request and expense of the Principal.
Delivery dates are extended or postponed in case of delays caused by the Principal, suppliers, official decrees, force majeure and other circumstances for which we are not responsible, by the duration of the impairment and a reasonable lead time. To the exclusion of any damage claims, events of force majeure further entitle us on account of the unfulfilled part to cancel the contract in whole or in part, if in spite of customary and reasonable efforts, the delivery cannot be performed. Force majeure includes all circumstances that cannot be attributed to us and which significantly aggravate or make deliveries impossible, e. g. currency, trade policy or other official measures, strikes, lockouts, operational breakdowns as well as obstructions of traffic routes, regardless of whether or not these circumstances happen to us, the supplier, or a subcontractor. Delays in delivery shall not entitle the company to assert damage claims and/or claims for avoidance on account of a mistake.
The foregoing is subject to changes in delivery and service insofar as such changes are acceptable to the Principal.
V. PERFORMANCE, PASSING RISKS, EXPORT
Regardless of each individual agreement on the place of delivery and the assumption of any shipping costs, the agreed place of performance shall be at our option either our company headquarters where the order was placed.
Regardless of any separately agreed price regulation, the price and performance risk shall pass to the Principal on our signalling our readiness to dispatch to the Principal, yet at the latest upon the consignment leaving our warehouse, and in the case of direct delivery, our supplier’s warehouse.
Delivery carried paid means delivery without unloading by the supplier and on the condition of a suitable access road. The recipient must initiate unloading immediately; any delays in unloading shall be at the Principal’s expense. When exporting the purchased products, the Principal undertakes to obtain the necessary export or customs licences and similar at his own expense. We do not issue any guarantee for the permissibility of the export of the purchased goods.
Payment is to be effected within 14 calendar days of invoice date net and without deductions. Bills and cheques are only accepted upon special agreement and on account of payment insofar as the bank confirmed acceptance thereof. Discount and other bank charges are at the Principal’s expense. In the case of bills, cheques or transfers, the date on which the bank credits the due amount is authoritative.
Within the same debt claim, incoming amounts are first set off against any incurred extrajudicial or judicial collection, then against interest, and finally against the capital itself. In the case of partial payment agreements, a due date shall be deemed missed upon defaulting on a partial amount.
If, following the conclusion of the contract, it becomes apparent that our payment entitlement is at risk due to deteriorating financial circumstances of the Principal that were not known to us at the time of the conclusion of the contract, or if the Principal defaults in the agreed payment, we are entitled to:
a) Postpone the performance of our own obligations,
b) Accept an extension of the delivery time;
c) Demand payment of the still outstanding full purchase price; d) Demand guarantees for claims still not due at our option;
e) As of the date of maturity, set off default interest amounting to the usual bank rate for current account credits, however, at least 12% p.a., as well as all costs and bank charges incurred as a result of collection (attempts);
f) In case of non-observance of a reasonable additional time for payment, cancel the contract, in which case we are not obliged to set an additional time for payment upon threat of cancellation;
g) To postpone and withhold any service to be supplied to the contractual party from another title, regardless of which type, until the outstanding payment is recovered.
This also applies in the event that a credit insurance contracted by us if necessary refuses to take over the business case due to the poor credit rating of the Principal.
The Principal must refrain from setting off any claims against us owed to him against claims owed to us or from assigning any claims against us to third parties with the exception of mere monetary claims (contractual exclusion of set-off and assignment).
The Principal does not have any right of retention towards any existing claims against us. In case of default, we are entitled to order a debt collection agency to recover the claim. Any resulting costs incurred are at the Principal’s expense.
Insofar as we carry out the dunning process ourselves, the Principal undertakes to pay an amount of €25.00 as well as an amount of €5,00 per half-year for evidence keeping of the obligation in arrears- billing.
In the case of export transactions, the Principal undertakes to return to us all original export and customs documents and similar, failing which the Principal undertakes to pay any due value added tax (VAT).
VII. RETENTION AND TRANSFER OF TITLE
The products are delivered subject to retention of title and remain our property until they have been paid in full. For current accounts, the retention of title also serves as surety for the balance claim. When claiming the retention of title, a cancellation of the contract shall only apply if it is explicitly stated. When taking back products, we are entitled to set off any shipping and handling expenses incurred. In case of third party access to the goods sold subject to retention of tile, especially through distraint, the Principal undertakes to refer to our ownership and notify us thereof immediately. The Principal undertakes to bear all costs and measures for the elimination of the intervention, especially, the costs for intervention proceedings and similar.
The Principal bears the full risk for the goods sold under retention of title, especially the risk of loss or deterioration.
In case of processing, joining or mixing our products with other material, we acquire joint ownership of the thus created product in proportion of the value of our product to that of the other material.
The Principal already assigns to us all claims out of the sale of products under rights of retention of title in our favour –if necessary in the amount of our joint ownership share –for securing and satisfying our claims. We accept the assignment. The Principal may neither assign this claim to third parties as surety nor for satisfaction purposes. We may only use our rights from this transfer if the Principal defaults on his payment obligations towards us.
The Principal undertakes to give us the name and address of his customers, the existence and amount of the claims resulting from resale, and to demonstrably notify these customers of the assignment of claims. Furthermore, the Principal undertakes to show the assignment of these claims to us in his accounting books in a suitable manner. We are entitled to notify the Principal’s customer of the transfer at any time.
In case of expiry of other warranty rights, the Purchaser undertakes to examine the products for noticeable defects immediately upon their delivery and to notify us in writing of any existing defects immediately, yet at the latest within 8 days from delivery, in case of hidden defects within 8 days after they are discovered. In case of complaint, the Purchaser undertakes to first accept, properly unload, and store the products.
Any deviations between the ordered and delivered products, like e.g. wrong sizes or wrong product (aliud delivery) must be claimed by the Principal within 8 days of receipt of the delivery and still prior to handling or processing, failing which the products are deemed accepted and cannot be taken back or exchanged by us. The Principal must furnish proof of the defectiveness of the supplied products at
the time of surrender. Presumption of law under § 924 ABBB (Austrian Civil Code) is expressly excluded.
We only grant warranty on those products that we ourselves purchased from suppliers within the frame of any warranty claims we are entitled to against the supplier. Regarding the products delivered by us, we only warrant that they show the usually assumed characteristics for these products in commerce. We only grant warranty for additional characteristics, especially included in public statements, like e.g. advertising and information enclosed to the products –if these characteristics were assured in writing during the course of ordering.
In case of resale of the goods supplied by the company, all claims pertaining to warranty of title against us become void; the right of recourse under § 933 b ABGB (Austrian Civil Code) is excluded.
We are under no testing and/or warning obligation regarding the materials, data, and compression tools provided by the company. In particular, we do not verify the accuracy of the data stored on supplied data carriers. We do not assume any liability for direct and indirect damage caused by defects in such data and materials.
Whether we fulfil warranty claims through whole or partial exchange, rectification, price reduction or redhibition remains our choice. Any liability on our part for consequential harm caused by a defect is excluded. Warranty claims expire after six (6) months following delivery. The Purchaser is not entitled to withhold payments on account of any warranty claims.
IX. DAMAGES, PRODUCT LIABILITY, FORCE MAJEURE
For any damage caused to the Principal within the frame of the business transaction, we only accept liability to the highest amount of the order value ordered from us, and only in case of intent or gross negligence or in case of intent and gross negligence on the part of our vicarious agents. Any compensation for consequential damage, mere property damage, loss of profits, and damage out of third party claims is excluded. In the case of drop shipments, we do not assume liability for culpable behaviour of the direct contractor (producer/supplier). The direct contractor is not deemed our vicarious agent. The damaged party must prove the existence of gross negligence. In B-2-B transactions, damage claims expire within one year of becoming aware of the damage and of the damaging party.
In the event that the Principal himself is made liable under the Austrian Product Liability Act or similar foreign provisions, he hereby explicitly agrees to waive any recourse towards us, especially in the meaning of § 12 Austrian Product Liability Act or similar foreign provisions. If the Principal puts the products supplied by us into circulation (or instructs us to put them into circulation), he undertakes to exclude liability for material damage caused by the company, the supplier or contractual partner to whom the products are forwarded, to transfer all objective contract items, and to commit any successors to power of disposition in our favour so that were are directly entitled to assert damages from this transfer. In the event that the Principal infringes this provision, he undertakes to indemnify us and hold us harmless in respect of third party legal proceedings and claims.
We are entitled to cancel the contract in case of delay in acceptance or other important grounds, like especially bankruptcy, or avoidance of bankruptcy for lack of assets, opening of insolvency proceedings, as well as default of the Principal. In case of cancellation, we may at our option, if the Principal is at fault, demand flat damages of 15% of the gross invoice amount or compensation for the actually incurred damage, insofar as it lies above this amount. In case of default of the Principal, we are released from all further obligations to provide products and services and entitled to withhold still outstanding deliveries of products or services, and to demand cash before delivery or guarantees, or cancel the contract after setting a suitable additional time for performance.
XI. APPLICABLE LAW, SALVATORY CLAUSE
All legal transaction underlying these Terms and Conditions are exclusively subject to Austrian material right, however excluding its conflicting principles, in particular the principles of international private law insofar as they can be applied to foreign law. In the event that Austrian law prescribes the application of special international material standards, like e.g. UN purchasing rights also applicable in Austria, in foreign affairs, they must not be applied. This also applies to any questions concerning the coming into force or the interpretation of the T&C and the contract.
The venue for all legal disputes arising out of or in connection with the existing contractual relationship is exclusively the court competent for the Principal as regards the subject matter for Vienna / Austria. However, we are also entitled, at our option, to take legal action against the Purchaser before any other court that may be competent under national or international law.
Should individual provisions of our terms and conditions be invalid or unworkable, this shall not affect the validity of the remaining provisions of these terms and conditions. The contracting parties undertake to agree upon a new provision that comes closest to the intent and purpose of the invalid provision.
XII. COPYRIGHT AND RIGHT OF REPRODUCTION
Provided that we are the owners of the copyright and ancillary copyrights in the supplied products or parts of the same, the Principal only acquires the right to distribute the supplied products upon receipt of the consignment; in other respects, the rights of use, in particular the right of reproduction, remains with us. We are exclusively entitled to use the means of reproduction and products produced by us to make copies. We are under no obligation to issue such copies, not even for utilisation purposes.
We are not obliged to check whether the Principal is entitled to reproduce any type of artwork (sketches, data, samples, …), to process or change the order accordingly, or otherwise use it in the expected fashion, rather we are entitled to assume that the Principal is entitled to all third party rights as are necessary for the execution of the order. The Principal expressly assures that he owns these rights.
The Principal undertakes to hold us harmless from all claims asserted by third parties out of infringements of copyrights, ancillary copyrights, other industrial property rights or privacy rights. We must notify the Principal immediately of any such claims and help him give third party notice in case of recourse to the courts. If, once litigations were initiated, the Principal does not join in the proceedings on our side as co-defendant, we are entitled to acknowledge the claim of the plaintiff and to hold ourselves harmless towards the Principal without consideration of the legitimacy of the recognised claim.
XIII. NAME OR TRADE MARK IMPRINT
We are entitled to imprint our company name (logo), our trade name, or Internet address on the products and packages used for execution without the special authorisation of the Principal.
XIV. MODIFICATIONS OF SERVICES
Any modifications as compared with the artwork, the data, or the sample are charged to the Principal according to the actually spent working time (author correction). Galley proofs (PDF) are only submitted to the Principal at his explicit request. However, we are entitled to submit galley proofs to the Principal without his explicit request. In this case, the Principal is obliged to approve the galley proofs. For the approval of the galley proofs by the Principal, we are entitled to set a reasonable period of time at the end of which a galley proof is automatically deemed approved. If the Principal distances himself from submitting a galley proof (PDF), the Principal shall be liable for the incorrect print execution that he caused.
Minor or reasonable changes in our delivery performance obligation shall be deemed approved by the Principal from the outset. This especially applies to necessary material-related or production- related deviations.
XV. STORAGE OF SEMI-FINISHED AND/OR FINISHED PRODUCTS
We are under no obligation to store remaining stock, cutting dies/forming dies and similar production-related tools following the execution of the order, unless a special agreement about it was reached with the Principal, in which case the Principal bears the storage costs and risk.
If temporary storage on our premises was agreed, we shall not be liable for any damage caused to the products during storage in spite of acting with due diligence. We are not obliged to take up insurance policies to cover risks to stored products.