I. Scope of Application/Signing of the Agreement
- m+w MediaCooperation GmbH & Co KG (hereinafter referred to as „the Contractor“ or m+w ) provides all services and deliveries subject to these General Terms and Conditions. Contrary or divergent conditions of the Client shall be recognized, if the Contractor expressly confirms their validity in writing.
- The Contractor’s offers are subject to change and are not binding, as long as they are not expressly described as a binding offer.
- Placing an order by clicking the button „payable order“ or a written order confirmation by the Contractor is material for the offer. The regulations of §312g of German Civil Code remain unaffected.
- Drawings, images, dimensions, weights and other performance data shall only be binding, if they have been expressly agreed in writing.
- If there are spelling or arithmetic errors or mistakes on the website, the Contractor shall not be obligated to accept the offer or fulfil the order.
- The prises mentioned in the offer of the Contractor shall apply, provided that the order data on which the offer is based remain unchanged, however, within 30 days after the receipt of the offer by the Contractor, at the latest. In the case of offers which are delivered to third parties, the Buyer shall be the Client, if no other provisions have been expressly agreed. The statutory VAT binding at the time must be added to the prices quoted by the Contractor.
- Any additional expenditure caused by later changes introduced by the Client shall be borne by the Client.
- The costs of sketches, drafts, type specimens, samples, proof sheets, changes of delivered/ transferred data and similar preliminary work which is requested by the Client shall be charged for.
- The Buyer can pay the invoiced amount by electronic direct debit system or by credit card after the price has been previously determined by the Contractor. By completing the registration form, the Buyer declares its consent for participating in the electronic direct debit system for the current and one-time collection and for the immediate collection of the invoiced amount. The invoices are usually issued at the end of every calendar month.
- In case of extraordinary advance performance, the adequate advance payment may be required.
- The Client can offset his liabilities or exercise the right to retention only by an undisputable or legally binding claim.
- If the fulfilment of payment claims is at risk due to seriously deteriorated financial circumstances of the Client which became known after concluding the agreement, the Contractor may demand the preliminary payment, retain the goods or performance which has not been delivered or provided yet and stop any further work. The Contractor is also eligible for these rights, if the Client delays the payment for the deliveries or services which refer to the same legal relationship.
IV. Acquiring the Right of Disposal
- If the goods are sent, the risk shall be transferred to the Client, as soon as the shipment is released to the person who performs transport. In case of processing electronic Data, they are available for downloading by the Client for four weeks after completion of the order (section IX. Storage), the Client shall be notified about the completion of the order by e-mail.
- The delivery times specified by onlinemask.com shall apply as the preferential delivery dates. Furthermore, they shall only be valid, if they are expressly confirmed by the Contractor in writing.
- Disruptions, at the premises of the Contractor and at one of its vicarious agents, such as, e.g. strike, lockout and all other cases of the force majeure, first of all, entitle to terminate the agreement, if the Client cannot be expected to wait any longer, otherwise, the agreed delivery deadline is prolonged by the period of deferment. However, the termination notice is possible four weeks after the occurrence of the above-mentioned disruption, at the earliest. The liability of the Contractor is excluded in these cases.
- In business dealings, the test prints and stamps, manuscripts, raw materials and other items delivered by the Client are subject to the right of retention by the Contractor, according to §369 of German Commercial Code, until the final fulfilment of all due claims resulting from the business relationship.
V. Retention of Title
- To the extent permitted by law, the delivered goods remain the property of the Contractor until full payment of all its claims against the Client, existing on the invoice date. The Client is entitled to resale only in the ordinary course of business. The Client hereby transfers its claims due to resale, to the Contractor. The Contractor hereby accepts the transfer. The Client is authorised to collect the claims after their transfer. The power of the Contractor to collect the claims by itself remains thereby unaffected; however, the Contractor undertakes not to collect the claims, as long as the Client properly performs its payment obligations and is not in arrears. At the latest, when payment is in arrears the Client is required to name the debtor of the transferred claim. If the total value of the existing securities for the Contractor exceeds its secured claim by more than 20%, the Contractor is required, upon request of the Client or of a third party affected by the excess securities of the Contractor, to release the securities to such an extent, at the discretion of the Contractor. Pledges and transfers by way of security of the goods subject to the retention title are not permitted.
- When processing the goods supplied and owned by the Contractor, the Contractor shall be deemed to be the manufacturer according to §950 of German Civil Code and the products shall remain its property at all stages of the processing. If third parties are involved in the processing, the co-ownership share of the Contractor is limited only to the amount of the invoice price of the goods which it has retained the title to. The property acquired in this manner shall be deemed as the property whose title has been retained.
VI. Complaints and Warranty
- Upon the acceptance or receipt of all supplied goods or services, particularly, the initial and intermediate products forwarded for proofreading, the Client is obligated to immediately check the items and to object against apparent defects to the Contractor in writing, within one week after the acceptance or receipt. Concealed defects must be objected against in writing within one week after their detection. Otherwise, the supplies or services are deemed to be approved.
- When and in so far as the defect has been established to be the liability of the Contractor, the Contractor is entitled, at its own discretion and subject to the exclusion of other claims, to fulfil its obligations subsequently by either rectifying the defect or delivering defect-free goods, at his own discretion. If the Contractor chooses to rectify the defect, it is eligible for this right twice. If rectifying the defect is definitely refused by the Contractor, proves a failure after the second time or it is unreasonable for the Contractor, the Client is entitled to further legal claims. The regulations of section VII of the present Terms and Conditions shall apply to claims for damages.
- An insignificant decrease in the value or the efficiency of the supplies or services does not justify any claim for material defects. Defects in a part of the delivered goods or provided service do not justify a rejection of the entire delivery or service, even if the Client is also interested in a partial delivery.
- A minor deviation from the original in case of colour reproductions during all printing processes may not be rejected. The same applies to the comparison between other proofs (e.g. digital proofs, print proofs) and the final product.
- The Contractor shall be liable for deviations in the workmanship of the material used, only up to the value of the order.
- The Contractor is not obligated to check the supplies (including, data carriers or transferred data) by the Client or a third party engaged by the Client. This shall not apply to clearly unprocessable or unreadable data. The Contractor is entitled to refuse processing of the data which breach the statutory or administrative regulations. In case of data transfers, the Client must apply the relevant state-of-the-art protection programs against computer viruses, before data transfer. The Client shall be solely responsible for data security. The Contractor is entitled to make a copy.
- Claims for defects by the Client fall under the statute of limitations 12 months after delivery of the goods, and at onlinemask.com for 4 weeks from downloading the data by the Contractor according to IV.1. However, the statute of limitations period provided for by the law applies in case of fraudulent concealment of a defect and in case of recourse by the Contractor (§479 of German Civil Code).
VII. Compensation for Damages/Limitation of Liability
- Apart from the cases of breaching material contractual obligations, the Contractor is liable only if and to the extent that the Contractor, its legal representatives, management staff or other vicarious agents are responsible for a deliberate act or serious negligence. In case of breaching a material, contractual obligation, the Contractor shall be liable for every culpable conduct of its legal representatives, management staff or other vicarious agents.
- Apart from the deliberate act or serious negligence of the Contractor’s legal representatives, management staff or other vicarious agents, any liability is limited to the amount of the damages which are typically envisaged when concluding the agreement, however, not higher than €10,000 (in words: ten thousand euros) per damage event.
- The Client must exercise its claim for damages by taking a legal action within four months after a written refusal of the Contractor.
- The above-mentioned limitations of liability shall not apply to the damages resulting from loss of life, bodily injury, health injury and in the case of mandatory statutory regulations.
The products which the Client is entitled to, particularly data and data carriers, shall be stored only under express agreement and against special reimbursement beyond the time of handing over the final product to the Contractor or its vicarious agents. As far as onlinemask.com is concerned, the data are saved for the period of 4 weeks from handing over the final product and then they are automatically deleted.
X. Commercial Property Rights/Copyright
Only the Client shall be liable, if third parties rights, particularly copyrights are infringed upon as a result of the execution of its order. The Client must indemnify the Contractor against all third party claims arising from any such infringement of rights.
XI. Alterations/Modifications, Partial Ineffectiveness
- The Contractor may modify these General Terms and Conditions for the purpose of the offer covered by the agreement at any time. The Contractor must notify the Client of the alterations. If the Client makes use of the offer after the alteration has been notified, it herewith accepts the alteration.
- The validity of older versions of the General Terms and Conditions shall expire upon the publication of an up-dated version.
- If one or more provisions are ineffective, the effectiveness of other provisions remains unaffected.
XII. Place of Performance, Place of Jurisdiction, Applicabel Law
- The place of performance for delivery and payment by both parties shall be Munich.
- The place of jurisdiction for all legal disputes arising from the contractual relationship, its existence and its effectiveness shall only be Munich for both parties, if the Client is a businessman, a legal person of public law or a special fund under public law. The Contractor is also entitled, at his own discretion, to file a suit at the registered office of the Client.
- The contractual relationship is subject to the laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
As at March 2013