Terms and Conditions of cutall GmbH & Co. KG, Germany
1. Validity of offers and Terms and Conditions
The services offered by cutall GmbH & Co. KG (hereinafter “cutall GmbH,” “we,” “us” and “its”) are subject to change without notice.
cutall GmbH processes all orders based on these General Terms and Conditions. Deviating conditions by the Customer that cutall GmbH does not expressly recognize shall not be binding, even if cutall GmbH has not expressly objected to them. Customers who act on behalf of Third Parties shall remain under contractual liability to cutall GmbH until we receive payment from their client.
2. Documents for construction and design
cutall GmbH assumes that the Customer is in possession of all existing copyrights necessary for executing the order. If execution of the order infringes any rights, in particular copyrights of Third Parties, the Customer shall be solely liable for this. The Customer shall indemnify cutall GmbH against all claims of Third Parties and reimburse any necessary legal costs incurred.
The Customer must provide all original plans, artwork, templates and other documents needed for processing the order and deliver them to cutall GmbH free of charge. The return shipment shall be made by ordinary mail unless the Customer expressly requests a different mode of shipment at his expense. In the event of loss, destruction or damage as a result of theft, fire, water ingress etc. cutall GmbH shall only be held liable up to an amount paid by usual fire, burglary and tap water damage insurance, unless cutall GmbH or its external service/business partners are found guilty of intent or gross negligence.
3. Delivery due dates
All due dates require an express agreement and are only binding in written form. In the case of force majeure, strike action or other unforseeable delays including, but not limited to, unexpected machine downtime, electricity failure or water failure, cutall GmbH may extend the delivery deadline by the amount of time the obstruction has lasted.
If an agreed delivery period is exceeded the Customer must grant a reasonable extension of this period unless cutall GmbH and the Customer have agreed a fixed‐date contract or such an extension would be deemed unfair. cutall GmbH is also entitled to make partial deliveries, unless the nature of the order excludes this or such practice would be deemed unfair to the Customer. In the event of delayed delivery we shall only accept claims for damages if the Customer has expressly pointed out the risk of damage in writing when placing the order.
4. Pricing and terms of payment
The agreed prices are valid under the provision that the job data supplied by the Customer remain unchanged. Subsequent changes at the Customer’s request will be charged additionally, including any machine standstill times caused by the change request. In the case that no specific price has been agreed cutall GmbH will charge its appropriate list price valid on the day the order was placed.
All invoices will be sent in the form of digitally signed e‐mails to an e‐mail address provided by the Customer. On the recipient side, the Customer has to ensure that all invoices can be properly forwarded to the e‐mail address provided, and must configure any technical tools such as filter programs or firewalls to allow for this. The Customer must notify us immediately if the e‐mail address has changed. If the client has not informed cutall GmbH of a change in address, the invoices will be sent to the e‐mail address last provided by the Customer, and the Customer is deemed to have received them. The Customer may request at any time that the invoices be sent by regular mail for an extra charge of 1.00 Euro per invoice. We reserve the right to send paper invoices to the postal address last provided by the Customer if we see fit.
Invoices are to be paid immediately and without deduction. All prices are in Euro plus the statutory VAT rate. In the event of default of payment cutall GmbH is entitled, at its discretion, to either bill the specific damage caused by the default, or charge an increased interest rate of 8% above the Base Interest Rate, as foreseen by section 247 of the German Civil Code (“HGB”).
We expressly reserve the right to refuse cheques and bills of exchange. Cheques or bills of exchange will only be accepted on condition that the payment has been fulfilled. Any discounting charges shall be borne by the customer and are due immediately. Bills of exchange are accepted without guarantee for correct presentation and protest. If bills of exchange and cheques are accepted, payment shall only be made when they are finally honoured. The customer may only offset our claims against any counterclaims if these have been legally determined, acknowledged by us, or are otherwise undisputed. We reserve the right to ask for an appropriate down payment.
5. Shipment and packaging
Without assuming any liability and unless the Customer has instructed us otherwise, cutall GmbH will choose a suitable mode of shipment at its own discretion. Postage and shipping costs shall be paid by the Customer. We will also invoice any additional costs incurred for special shipment by courier, registered mail or taxi; the same holds for road or air freight charges.
cutall GmbH is entitled, but not obliged, to buy transport insurance for deliveries in the Customer’s name and charge the Customer with the insurance costs. For deliveries effected by Third Parties all such responsibilities are waived.
6. Storage and disposal costs
The Customer must collect the ordered goods within three months after receiving a Completion Note from cutall GmbH. If the goods have to be stored at our site in excess of 14 days after the notification was sent cutall GmbH is entitled to charge interest on the value of the goods at 8% above the Base Interest Rate, as foreseen in section 247, HGB. If the Customer has not collected the order within 3 months, cutall GmbH is entitled to dispose of the goods at the customer’s expense, even if the relevant invoice has been paid.
7. Media and working materials
cutall GmbH waives all liability for the loss of, or damage to any media, data or working materials sent in by the Customer, except if we or any of our our external service/business partners have caused the damage intentionally or through gross negligence, or have culpably violated a substantial contractual obligation. The customer undertakes to send in or hand over virus‐free storage media 1685 only, and to have previously made backup copies of such media. The customer agrees that cutall GmbH will check each individual medium for the presence of viruses and other malicious content using a commercially available software. Storage media that contain viruses or malware cannot be further processed and will be rejected; the Customer is responsible for any delays caused by this. If despite these precautions our IT systems or company data suffer damage from a virus, the Customer who provided the corrupted storage medium is legally responsible to compensate us for such damage.
8. Notice of defects
Commercial Customers are under an obligation to inspect the goods immediately after delivery within the scope of ordinary business procedure and, where applicable, immediately notify cutall GmbH in written form of any defects found on the goods; the respective stipulations of section 377, HGB apply without exception. In any case, claims about obvious defects may only be made within one week. The notice period is determined by the date of delivery, and the date of receipt of the written complaint. When placing a complaint the Customer must make all documents belonging to the order available to us; otherwise cutall GmbH cannot guarantee a timely review and processing of the claim.
The measurements specified in the order are working formats only and will be reduced when trimmed. Should the Customer require exact final measurements these must be expressly agreed when the order is placed; otherwise any complaints in this regard will not be valid.
Deviations of up to 5% from the ordered quantities are production‐related and cannot be objected to. cutall GmbH will invoice the exact quantities delivered including the initial product samples. A defect in one part of the delivery does not entitle the Customer to reject the entire delivery, unless a partial shipment would be of no value to the Customer.
9. Claims and liability
Liability for defects shall be limited to either performing subsequent improvements or offering price reductions, whichever cutall GmbH deems more appropriate. If cutall GmbH has opted for subsequent improvement but fails to deliver in a reasonable period of time, the Customer is entitled, at his own discretion, to either withdraw from the contract or claim a price reduction.
The dyes and inks used in our materials may change or fade over time, which is a natural process. cutall GmbH is under no obligation whatsoever to pay compensation for colour alterations or replace elements that have been subject to such alterations.
All designs must be inspected and approved by the Customer before they undergo external processing (by printers, retouchers, bookbinders etc.) as cutall GmbH will accept no liability for consequential damage. We accept liability under the applicable laws, i.e. only if we have culpably violated substantial contractual obligations. Such liability will however be limited to the foreseeable consequences typically associated with the damage at hand. In all other respects cutall GmbH cannot be held liable on any legal ground whatsoever except if otherwise mentioned in the above, as well as for culpable injuries to life, body, health or safety, or under the German Product Liability Act (ProdHaftG); these liabilties remain unaffected. The limitation period for notes on defects is 12 months from the date we have sent the Completion Note, regardless of whether the customer has collected the goods or not.
10. Retention of title
The delivered goods remain the property of cutall GmbH until the Customer’s full payment has been received. The items may only be resold following ordinary business procedures. The Customer hereby transfers any claims from the resale or reuse of the items to cutall GmbH. This constitutes an extended reservation of title.
11. Place of fulfillment and jurisdiction
The place of fulfillment, as well as the place of jurisdiction for any disputes between cutall GmbH and the Customer—insofar as the Customer is a business owner, legal entity under public law or special fund under public law—is our registered office.
cutall GmbH & Co. KG, September 2011