General Terms and Conditions (Delivery and Payment) for the Graphic Industry (March 2002).
(1) The Contractor’s deliveries, services and offers shall be based exclusively on these Terms and Conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. Counter-confirmations by the Customer referring to his terms and conditions of business or delivery are hereby rejected. (2) Deviations from these terms and conditions shall only be effective if the Contractor confirms them in writing. (3) These terms and conditions shall remain binding even if individual parts should not be effective for any reason.
(1) The prices quoted in the Contractor’s offer shall apply subject to the proviso that the order data on which the offer was based remain unchanged. The Contractor’s prices do not include value added tax unless the communication or offer is addressed to consumers within the meaning of the Consumer Protection Act. The Contractor’s prices are ex works. They do not include freight, postage, insurance and other shipping costs. Unless otherwise stated in the offer, all order-related materials such as printing materials (paper, cardboard, etc.), printing devices (films, repros, plates, cutting dies, etc.) and bookbinding materials, as well as all special distribution costs (special packaging, etc.) are daily prices that can be adjusted to the respective price situation at the time of production. The prices include only the simple packaging (wrapping) of the printed products. If the customer requires special packaging (cardboard, carton, pallet, crate), this will be charged at cost price. If crates or pallets are returned in perfect condition within 4 weeks free delivery, up to two thirds of the cost price of the crates or pallets may be credited. (2) Orders which deviate in their wording from the offers in any respect require confirmation by the contractor in order to be binding. Objections due to a deviation of the contents of an order confirmation from the order letter must be raised within two working days after receipt of the order confirmation, otherwise the contents of the order confirmation shall be deemed agreed. (3) In all other respects, price quotations shall be non-binding unless their binding nature has been expressly agreed. An increase in relevant individual costs (e.g. films, plates, data carriers, paper, cardboard, printing forms, repros, bookbinding material, costs of data transmission, etc.) as well as an increase in personnel costs due to collective bargaining agreements or statutory regulations after the price has been submitted but before the delivery has been invoiced shall entitle the Contractor to invoice the resulting price increases even without prior notification of the cost estimate being exceeded. This condition is expressly approved by the Customer. (4) Subsequent changes at the instigation of the Customer (e.g. also within the scope of the so-called Customer and Author correction) including the machine downtime caused thereby shall be charged to the Customer. Subsequent changes shall also include repetitions of test prints requested by the Customer due to minor deviations from the original or the Customer’s specifications. (5) Exceeding of the offer (cost estimate) caused by changes made by the Customer shall be deemed approved by the Customer even without notification by the Contractor. The client waives the right of withdrawal for such cases. Order changes or additional orders may be invoiced at reasonable prices. (6) Draft and press proof costs as well as costs for final artwork will always be invoiced separately and are not included in the delivery prices. The same shall apply to all special requests exceeding the usual scope, e.g. production of samples, finishing and packaging of the print work. Samples and drafts produced at the request of the Customer shall in any case remain the property of the Contractor and shall be invoiced separately, even if the order is not executed. (7) The Client shall bear the costs for data transmissions initiated by him (e.g. via ISDN). The Contractor shall not assume any liability or warranty for transmission errors.
III. INVOICE PRICE
The Contractor shall invoice its supplies and services on the date on which it delivers – even partially – or stores them for the Customer or holds them ready for the Customer on call. The invoice price may differ from the order price if the changes in the basis of calculation mentioned in point II have occurred or if changes have been made by the Customer after the order has been determined.
IV. TERMS OF PAYMENT
(1) Payment (net price plus VAT) shall be made within 30 calendar days from the date of invoice without any deductions. If payment is made within 8 calendar days of the invoice date, the Contractor shall grant a 2% discount on the invoice amount, but, if shown on the invoice, excluding costs for freight, postage, insurance or other shipping costs and the ARA license fee. Bills of exchange and checks will only be accepted by special agreement and on account of payment, provided that the financial institution has confirmed acceptance. Refinancing costs and expenses shall be borne by the customer. These are to be paid immediately by the client. The Contractor shall not be liable for the timely presentation, protest, notification and return of the bill of exchange in the event of dishonor, unless the Contractor or its vicarious agents are guilty of intent or gross negligence. In the case of bills of exchange, checks or bank transfers, the relevant date shall be the date on which the financial institution credits the Contractor. (2) In the event of the provision of large quantities of paper and cardboard, special materials or advance services, the Contractor may demand advance payments for these. (3) The Contractor shall not be obliged to execute the order prior to making the required advance payment. Any further consequences arising therefrom (e.g. failure to meet delivery deadlines) shall be borne by the Customer. (4) The Customer may only offset an undisputed or legally established claim. A Customer who is a registered merchant within the meaning of the German Commercial Code (HGB) shall not be entitled to rights of retention or set-off. (5) Justified complaints shall not entitle the Customer to withhold the entire invoice amount, but only an appropriate part thereof.
V. DEFAULT OF PAYMENT
(1) If a significant deterioration in the financial circumstances of the Customer becomes known or if the Customer is in default of payment, the Contractor shall be entitled to demand immediate payment of all invoices, including those not yet due. Furthermore, the Contractor shall have the right to make further work on current orders dependent on pro rata payments. Furthermore, the Contractor shall have the right to retain the goods not yet delivered and to discontinue further work on current orders in the event of non-payment of the pro rata payments. The Contractor shall also be entitled to these rights if the Customer does not make any payment despite a reminder justifying default. (2) In the event of default in payment, interest on arrears shall be payable at a rate of 4 percentage points above the EURIBOR (Euro Interbank Offered Rate). This shall not exclude the assertion of further damage caused by default. (3) In the event of default, the Customer undertakes to reimburse the Contractor for the dunning and collection expenses incurred, insofar as they are necessary for the appropriate prosecution, whereby the Customer undertakes in particular to reimburse at most the fees of the collection agency engaged, which result from the BMWA regulation on the maximum rates of fees due to collection agencies. If the Contractor carries out the dunning process itself, the Customer undertakes to pay an amount of EUR 15.00 per reminder and an amount of EUR 5.00 per half-year for keeping the debt relationship on record in the dunning process. In addition, any further damage, in particular also the damage caused by the fact that as a result of non-payment correspondingly higher interest accrues on any credit accounts on the part of the Contractor, shall be compensated irrespective of the fault for the delay in payment.
VI. DELIVERY TIME
(1) The delivery period shall commence on the date of receipt of the order by the Contractor, provided that all working documents are clearly and unambiguously available to the Contractor and nothing to the contrary has been noted in the order confirmation; it shall end on the date on which the goods leave the Contractor’s premises. (2) Agreed delivery times are in principle only approximate dates unless they have been expressly agreed in writing as fixed dates. If a fixed date has been agreed, the obligations to cooperate (e.g. delivery of defect-free data, checking of preliminary and intermediate results, delivery of films, templates, author’s correction, etc.) and their deadlines must be specified when the order is placed. If the Client does not fulfill his duties to cooperate or does not meet the agreed deadlines, the Contractor shall not be liable for compliance with the agreed delivery date. This shall also apply in the event of subsequent changes to the order by the Customer. In addition, the Contractor shall be entitled to compensation for the costs incurred by him as a result. (3) The delivery period shall be interrupted for the duration of the examination of the brush proofs, press proofs or reference samples sent by the Customer. (4) In the event of a delay in delivery, the Customer may only demand performance and compensation for damages due to the delay after an appropriate period of grace has been granted or may only declare withdrawal from the contract after a new period of grace has been granted. The grace period must be appropriate to the type and scope of the order. (5) In the event of force majeure or other unforeseeable, extraordinary and non-culpable circumstances, e.g. in the event of material procurement difficulties, operational disruptions, strike, lockout, lack of means of transport, official interventions, energy supply difficulties, etc. – even if they occur with upstream or subcontractors – the delivery period shall be extended to a reasonable extent if the Contractor is prevented from fulfilling its obligation in a timely manner. If the delivery or service becomes impossible or unreasonable due to the circumstances mentioned, the contractor shall be released from the obligation to perform. If the delay in performance lasts longer than two months, the Customer shall be entitled to withdraw from the contract. If the delivery time is extended or if the Contractor is released from its obligation to perform, the Customer may not derive any claims for damages from this. The Contractor may only invoke the aforementioned circumstances if he notifies the Customer immediately.
(1) Deliveries shall be made ex works of the Contractor for the account and at the risk of the Customer, unless otherwise agreed. Transport insurance shall only be taken out at the express request and expense of the Principal. The risk shall pass to the Customer as soon as the consignment has been handed over to the person carrying out the transport or has left the Contractor’s warehouse for the purpose of dispatch. If shipment is delayed at the request of the Customer, the risk shall pass to the Customer upon notification of readiness for shipment. (2) Excess and short deliveries are permitted up to 5 % for the simplest work, and up to 10 % for more difficult or multi-colored work, and are to be invoiced on a pro-rata basis based on the production run. In the case of material provided by the customer, the tolerance rates of the supplier industry will be additionally taken into account. In the case of deliveries of paper custom-made products weighing less than 1,000 kg, the percentages shall be increased to 10 or 20 %, and to 8 or 15 % in the case of deliveries weighing less than 2,000 kg.
VIII. TYPESETTING AND PRINTING ERRORS, CORRECTIONS
(1) Typesetting errors shall be corrected free of charge if they are the fault of the contractor. (2) The Client shall be charged for changes made to the artwork in accordance with the time spent on the work (author’s correction). Changes ordered by telephone, fax or e-mail shall be carried out by the Contractor without liability for correctness. If the Client requests changes or corrections via e-mail, the Client shall be obliged to inform the Contractor of this e-mail immediately in a suitable manner (e.g. by telephone or fax). This applies in particular to subsequent changes to proofs that have already been printed. (3) Proofs shall only be submitted to the Client upon express request. However, the Contractor shall be entitled to submit proofs even without an agreement to this effect. In this case, the Customer shall also be obliged to approve the proofs. The Contractor shall be entitled to set a reasonable deadline for the execution of the correction by the Client, after the expiry of which the galley proof shall automatically be deemed approved. If the Contractor refrains from submitting a galley proof, the Contractor shall be liable for any inaccuracies in the print execution for which it is responsible. (4) The latest edition of the Duden (“new spelling”) shall be authoritative for spelling in the German language.
IX. DEFAULT OF ACCEPTANCE
(1)The Customer shall be obliged to accept without delay the goods sent in accordance with the contract or made available for collection; if the Customer fails to meet this obligation, the delivery shall be deemed to have taken place on the day on which acceptance should have taken place in accordance with the contract; the risk of accidental loss shall thereby pass to the Customer. (2) In the event of a delay in acceptance or in the event of an impossibility of delivery caused by force majeure, the Contractor shall be entitled to store the goods itself or to have them stored by a forwarding agent at the expense and risk of the Customer.
(1) The client must check the contractual conformity of the delivered goods as well as the preliminary or intermediate products sent for correction in every case. The risk of any errors shall pass to the client upon the declaration of readiness for printing, insofar as these are not errors which only arose or could only be detected in the production processes following the declaration of readiness for printing. The same applies to all other declarations of release by the customer for further production. (2) Complaints (notices of defects) due to obvious defects must be reported to the Contractor immediately after delivery and determined. Hidden defects must be notified to the Contractor immediately after discovery, but at the latest within 3 months after the goods have left the Contractor’s premises or the Contractor’s sphere of control. (3) The warranty period for movable goods shall be three months. (4) The presumption of § 924 ABGB is excluded. The existence of the defect at the time of handover shall be proven by the Customer. (5) The right of recourse according to § 933 b, second sentence ABGB shall become statute-barred two years after performance of the service by the contractor. (6) In the event of justified complaints, the Contractor shall be obligated, at its discretion and to the exclusion of other claims, to rectify the defect and/or provide a replacement delivery, up to the amount of the order value, unless a warranted characteristic is missing or the Contractor or its vicarious agents are guilty of intent or gross negligence. The same shall apply in the event of a justified complaint regarding the repair or replacement delivery. In the event of delayed, omitted or unsuccessful rectification or replacement delivery, the Client-Customer may demand a reduction of the remuneration or withdraw from the contract. The client waives the right to withdraw from the contract in the event of significant defects. The Contractor’s liability for consequential damage caused by a defect shall be excluded unless the Contractor or its vicarious agents are guilty of intent or gross negligence. (7) If the order involves contract finishing work or the further processing of printed products, the Contractor shall not be liable for the resulting impairment of the product to be finished or further processed, unless the damage was caused intentionally or by gross negligence. (8) In the event of partial delivery, these provisions shall apply in each case to the delivered part. Defects in a part of the delivered goods shall not entitle the customer to complain about the entire delivery. (9) In the case of color reproductions in all printing processes, minor deviations from the original cannot be objected to. The same shall apply to the comparison between press proofs and production print, in particular if the press proof and production paper do not match. A guarantee for the fastness properties of inks, bronzes, varnishes, impregnations, laminations and gummings shall only be provided to the extent that the upstream suppliers have undertaken to provide to the contractor. (10) If a digital proof is submitted to the Client as a correctable intermediate product for a declaration of readiness for printing, it is expressly pointed out that the final product may contain color deviations due to the different production processes. If a binding proof is required, a chargeable press proof would also have to be created. (11) The Contractor shall only be liable for deviations in the quality of the material used up to the amount of its own claims against the respective supplier. In such a case, the Contractor shall be released from its liability if it assigns its claims against the subcontractors to the Customer. The Contractor shall be liable like a guarantor insofar as claims against the subcontractor do not exist or cannot be enforced due to the fault of the Contractor. For the materials used, those tolerances shall apply which are contained in the corresponding delivery conditions of the suppliers or which are customary in the industry. (12) The contractor shall not be liable under any circumstances for damage caused by defective storage of the products by the customer. (13) If rejected printed products cannot be returned to the Contractor, a warranty or compensation for damages shall only be provided if precise documentation of the defect in accordance with a recognized quality control method is submitted to the Contractor. In such a case, the Client shall acknowledge quality documentation of the Contractor based on a recognized quality control method.
XI. LIMITATION OF LIABILITY
(1) Claims for damages are excluded unless the damage was caused by intentional or grossly negligent action. Claims for damages due to impossibility of performance shall be limited to compensation for the foreseeable damage and the amount of the order value, unless the damage was caused by intentional or grossly negligent action. The above limitations of liability shall apply to the same extent to the Contractor’s vicarious agents. In commercial transactions, the Contractor shall also not be liable for gross negligence on the part of vicarious agents or persons employed by the Contractor in the performance of its obligations, unless an executive employee of the Contractor is accused of gross negligence. (2) In the event of liability, only monetary compensation can be demanded, whereby the liability is limited to the amount of the order value. In view of this, the client is recommended to take out additional insurance. (old point 5 from Art. VI) As far as a damage is based on a fault of the contractor (except gross fault), it is limited to the amount of the order value (i.e. own work excluding preliminary work and material). Lost profit cannot be claimed. (3) Claims for damages shall be asserted in court within six months of knowledge of the damage or within three years of delivery or performance of the service, otherwise they shall be forfeited. After one year from delivery or service provision by the contractor, the burden of proof shall be on the customer. (4) If liability of the contractor comes into consideration, he shall be released from liability to the extent that he assigns existing and enforceable claims against supplying or processing companies to the customer. (5) The liability to pay compensation for property damage resulting from the Product Liability Act as well as product liability claims that can be derived from other provisions are excluded. The limitations of liability shall be transferred in full to any purchasers, with the obligation to further transfer. The delivery item only offers the safety that can be expected in consideration of the material-specific properties.
XII. MATERIALS AND DATA PROVIDED
(1) Materials provided by the Customer, such as templates, printing plates, films, data carriers of all kinds, paper, etc., shall be delivered carriage paid to the Contractor’s premises. Receipt shall be confirmed without guarantee for the correctness of the quantity stated in the delivery documents. The Contractor shall only be in a position to carry out proper acceptance and inspection during the production process and shall only be liable for such damage which has occurred through its own fault (see Section XI). The Contractor shall have no obligation to inspect and warn with regard to materials, data (e.g. via ISDN) and printing devices such as provided typesetting, reprographics and the like, diskettes, films, etc. delivered or transferred by the Client itself or by a third party engaged by it. In particular, in the case of data carriers provided or data transferred, the correctness of the stored data (texts, images) shall no longer be checked by the Contractor. The contractor is also not liable for errors in and with such printing devices provided directly or indirectly by the client as well as for errors in the final product that are due to defective data supplied. Should a review by the Contractor be requested by the Client, this will be charged separately, as will any correction. (2) Templates used by the Client as a basis for the order (e.g. computer printouts, digital proofs) are not binding. It is expressly pointed out that the final product may contain color deviations due to the different production processes. (3) In the case of data supplied or transferred by the Client or by a third party engaged by the Client, the Client shall bear the costs for all exposures or prints caused by the file in the case of the mere exposure of such data. The processing of the data shall only be carried out at the express request of the Client and shall be invoiced separately. If the Client does not provide a binding press proof or other proof or if the Contractor does not order such a proof, the Contractor shall assume no liability whatsoever for the correctness and regularity of the exposure or print. This shall also apply if the technical information on which the order is based is incomplete or incorrect. (4) The obligation to back up data is the sole responsibility of the Client. Irrespective of this, the Contractor shall be entitled to make a copy. (5) The following additional points shall apply to the transfer of data provided by the Customer: A composite file in PDF (if possible PDF/X3 according to ISO 15930-3), TIFF/IT or TIFF format is to be provided by the Client. Fonts contained in the document must be embedded, imported image files and high-resolution data (OPI) must be supplied. Application formats (e.g. Quark, Photoshop, InDesign, etc.) require prior agreement between the client and the contractor. Together with the data, the Contractor shall receive from the Client a test print (1:1) as well as a list of all files transmitted by means of data carriers or telecommunications equipment (name, date, time) with the fonts used (name of font, manufacturer, version number) as well as the programs used (name, manufacturer, version number). The source profile of the data and the profile of the output printing conditions used during proof printing must be provided (ICC profiles). A Ugra/Fogra media wedge CMYK-TIFF must be printed on a digital proof. A print control strip must be printed on an analog proof, on which the solid colorations and the dot gain of CMYK and spot colors can be measured. To avoid errors, the following details must be clearly marked on the proof by the customer: text, layout and image changes requested by the customer; “placeholders” for images and text; special effects such as exemptions, distortions, special colors (precisely defined by HKS or Pantone scale) and screen gradations; format with and without bleed (minimum 3 mm); screen ruling and screen type (e.g. frequency-modulated) in accordance with the specifications of the relevant part of the ISO 12647 series of standards; printing process. In order to avoid quality degradation, images must be supplied by the client as CMYK data. The client guarantees that only licensed fonts (postscript fonts only) will be used to create the data carrier. If the amount of data supplied by the client exceeds 25 MB, the costs incurred for checking the data will be charged to the client according to the time spent. If the Client does not supply a proof print and a list of the files, these shall be prepared by the Contractor and additionally invoiced to the Client. (6) The Contractor shall be entitled to charge all costs associated with the inspection and storage of the material provided. (7) Packaging material as well as the usual waste caused by trimming, punching, printing equipment and production printing shall become the property of the Contractor upon processing.
XIII. ORDER DOCUMENTS
(1) The Contractor shall be liable for manuscripts, drafts, templates, printing forms, slides, films, data carriers and other documents within the meaning of Section XII (1) until 4 weeks after completion of the order. Beyond that, the Contractor shall not assume any liability whatsoever for documents that have not been reclaimed. The Contractor shall also not be obliged to keep these documents and the items serving for reuse beyond the aforementioned date. (2) The aforementioned items, insofar as they are provided by the Customer, shall be treated with care until the delivery date. The contractor shall only be liable for damage in the event of intent or gross negligence. (old point 6 from Art. XII) The contractor is liable as a custodian in the sense of the General Civil Code. (3) If the aforementioned items are to be insured, the customer shall procure the insurance himself.
XIV. STORAGE OF PRINTED MATTER AND THE LIKE, ARCHIVING OF DATA
(1) The contractor shall not be obliged to store printed products, work aids, intermediate products and printing devices (e.g. data suitable for exposure, films, montages, printing formes, printing cylinders, cutting dies, papers, etc.) after the order has been executed, unless a special agreement has been reached with the customer in this respect; in this case, the customer shall bear the costs and risk of storage. (2) If temporary storage with the Contractor has been expressly agreed, the Contractor shall only be liable for damage caused to the goods during storage in the event of intent and gross negligence. The Contractor shall not be obliged to take out insurance to cover risks to stored goods. (3) The Contractor shall charge the Customer for the storage of finished or semi-finished products in accordance with the applicable forwarding tariff for merchandise. The temporary waiver of the storage fee does not include any waiver of the storage fee for products still stored at the printer. The calculation is carried out in each case in retrospect for 3 months. The agreed obligation to store the typesetting or other printing equipment expires if the customer does not pay the costs charged for this within 4 weeks. (4) Products to which the Contractor is entitled, in particular data and data carriers, shall only be archived by the Contractor beyond the time of handover of the final product to the Client or its vicarious agent by express agreement and against special remuneration. If the aforementioned items are to be insured, this shall be arranged by the Client itself in the absence of an agreement.
XV. PERIODIC WORK
If the order includes the performance of regularly recurring printing work and if an end date or period of notice has not been agreed, then the order can only be terminated by giving three months’ written notice to the end of a calendar quarter.
XVI. PROPERTY RIGHTS
The objects of operation, work aids and intermediate products used by the contractor for the production of the contractual product, in particular typesets, data carriers, printing plates, lithographs, films, plates, maters, punches, stereos and galvanos and other aids required for the production process (printing devices) as well as the processed data shall remain the property of the contractor and shall not be delivered, even if the client has paid compensation for the value of these works or they are invoiced separately. They will also not be handed over for use. This shall also apply to the work aids (printing devices) and data which have been produced by another company on behalf of the Contractor obliged to deliver.
(1) Insofar as the Contractor itself is the owner of the rights of use under copyright and ancillary copyright law to the delivered products or parts thereof, the Customer shall only acquire the non-exclusive right to distribute the delivered products upon acceptance of the delivery; in all other respects the rights of use, in particular the right of reproduction, shall remain unaffected in the hands of the Contractor. The Contractor shall have the exclusive right to use the means of reproduction (typesetting, processed data, data carriers, films, repros, etc.) and printed products (flags, raw prints, etc.) produced by him for the production of duplicates. He shall not be obligated to hand over such duplication means, not even for utilization purposes. (2) The Contractor shall not be obliged to check whether the Client is entitled to reproduce the originals of whatever kind, to process or modify them in accordance with the order or to use them in any other way as intended, but shall be entitled to assume that the Client is entitled to all those rights vis-à-vis third parties which are necessary for the execution of the order. The client expressly assures that he has these rights at his disposal. (3) If the Client provides fonts or application software in order to be able to further process the data supplied by him, the Client assures the Contractor that he is entitled to this limited transfer of use. The Contractor assures the Customer that it will only use these fonts or application software for processing the specific order. (4) The Customer shall indemnify and hold the Contractor harmless from and against any and all claims asserted by third parties based on infringements of copyrights, ancillary copyrights, other industrial property rights or personal protection rights. The Contractor must notify the Client of such claims without delay and, in the event of legal action, notify the Client of the dispute. If the customer does not join the proceedings as a party to the dispute of the contractor, the contractor shall be entitled to acknowledge the claim of the plaintiff and to indemnify the customer without regard to the legitimacy of the acknowledged claim.
XVIII. LIABILITY OF THE INTERMEDIARY
If an intermediary of the printing order acts on behalf of a third party, he shall be liable for the collectability of the Contractor’s claim as a guarantor and payer. However, the Contractor shall have the right to demand payment of the outstanding debt from the intermediary only after the Client has sent a reminder to no avail. The intermediary undertakes to transfer the rights of the contractor to his principal.
XIX. RETENTION OF TITLE
(1) The delivered goods shall remain the property of the contractor until the delivery price has been paid in full.
(2) The following terms and conditions shall only apply to business relations with customers who are registered traders within the meaning of the German Commercial Code (HGB): The goods shall remain the property of the Contractor until full payment of all claims of the Contractor against the Customer existing on the invoice date. In the case of a current account, the reserved property shall be deemed to be security for the Contractor’s balance claim. The Customer’s claims arising from a resale of the reserved goods shall already be assigned to the Contractor upon placement of the order as security for all of the Contractor’s claims arising from the business relationship. The Customer shall only be entitled and authorized to resell the reserved goods on the basis of a purchase contract, contract for work and services, contract for work and materials or similar contract if the claim from the resale is transferred to the Contractor. In the case of products which are subject to copyright protection, the Customer shall be obliged to procure or transfer the rights of use (exploitation rights) to the Contractor. The Customer shall not be entitled to dispose of the reserved goods in any other way. At the request of the Contractor, the Customer shall be obliged to notify the third party purchaser of the assignment for payment to the Contractor. If the value of the securities existing for the Contractor exceeds its claim by more than 20% in total, the Contractor shall be obliged to release securities of the Customer’s choice at the Customer’s request or at the request of a third party affected by the Contractor’s excess security.
XX. RIGHT OF RETENTION
The Contractor shall be entitled to a right of retention in accordance with § 369 of the German Commercial Code (HGB) in respect of originals, slides, printing plates, films and repros, manuscripts, data carriers, raw materials and other items supplied by the Customer until all due claims arising from the business relationship have been satisfied in full.
XXI. NAME OR BRAND IMPRINTING
The Contractor shall be entitled to affix its company name or brand name to the products to be executed even without special approval by the Customer.
XXII. APPLICABLE LAW, PLACE OF PERFORMANCE, PLACE OF JURISDICTION
(1) Austrian substantive law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The language of the contract shall be German. (2) The place of performance for delivery and payment shall be the Contractor’s registered office. (3) The place of jurisdiction for legal disputes concerning the existence or non-existence of a contractual relationship subject to these Terms and Conditions of Delivery and Payment or for legal disputes arising from such contractual relationships shall be, at the Contractor’s option, the Contractor’s place of jurisdiction or the Customer’s general place of jurisdiction for actions brought by the Contractor, and exclusively the Contractor’s general place of jurisdiction for actions brought against the Contractor.
XXIII. ORDER AGREEMENT
All order agreements, including subsequent amendments, supplements, etc., must be in writing in order to be valid. Verbal agreements, e.g. by field staff, unless confirmed in writing, shall be deemed not to have been made. Without guarantee! Note: The agreement of the jurisdiction clause of item XXII (2) and (3) must be proven to the court in writing.