General terms and conditions of Local Brand X GmbH
§ 1 Scope
The following terms and conditions apply to all services and deliveries between the Local Brand X GmbH (hereinafter "LBX") and its customers, in the version that is valid at the time of the respective conclusion of the contract. These terms and conditions also apply to all future business relationships with the customer. Conflicting or deviating from these general terms and conditions of the customer are ineffective. These terms and conditions do not apply to consumers. If, in addition to these general terms and conditions, special terms and conditions of LBX are effectively included in the contract, then in the case of overlaps and contradictions, the provisions of the special terms and conditions of LBX shall prevail. Changes or additions to these general terms and conditions are made by LBX to the customer in writing. They are considered approved if the customer does not object to them in writing. LBX particularly points out the consequences of this announcement to the customer. The customer must send the objection to LBX within six weeks after notification of the changes or additions.
§ 2 offer, price and order
Offers by LBX are subject to confirmation and non-binding, unless the respective offer is expressly designated as binding for a certain period of time. The prices valid on the day of conclusion of the contract apply. The prices are in Euro plus VAT. Declarations of acceptance and orders require the written or telephone confirmation of LBX to be legally effective. The prices of LBX are ex works. They do not include packaging, freight, postage, insurance and other shipping costs. Subcontractual order changes or order extensions that cause extra work for LBX will be charged separately by LBX upon prior notification. This shall also apply in the event that the customer does not cooperate in time with his performance as part of the execution of the contract and LBX has to render services outside of normal office hours in order to meet the customer's deadlines. Subsequent changes at the instigation of the customer (eg orderer and author corrections) including the resulting machine downtime will be charged to the customer. Changes to the text require the written confirmation of the customer. Subsequent changes also include repetitions of test prints which are requested by the customer due to a slight deviation from the original. If services of LBX or the takeover by the customer in its own business are delayed due to circumstances beyond the control of LBX, the customer will be charged for all additional costs resulting therefrom. In the case of orders with delivery to third parties, the customer counts as the customer unless otherwise expressly agreed. Sketches, drafts, sample sets, proofs, samples, proofs, changes in the delivery of transferred data and similar preparatory work initiated by the customer are calculated.
§ 3 delivery, partial delivery, delivery time
If the goods are to be shipped, the risk of accidental destruction and accidental deterioration of the goods upon delivery or sale by delivery with the delivery of the goods to the freight forwarder, the carrier or any other person or institution intended for execution on the customer. The transfer is the same if the customer is in default of acceptance. Fixed dates are to be marked as such in the order and require the explicit consent of LBX. Compliance with our obligation to deliver presupposes the timely and proper fulfillment of the obligations of the customer. The plea of the unfulfilled contract remains reserved.
§ 4 Retention of title
LBX retains title to the delivered item until full payment has been received. This also applies to all future deliveries, even if an explicit reference is not always made. The customer is entitled to resell to third parties in the normal course of business. The customer assigns the claims from the resale to LBX in advance in the amount of the agreed final amount including value added tax. This assignment applies regardless of whether the item is resold without or after processing. The customer remains entitled after cession - in addition to LBX - to collect the claim. LBX will not collect the claim as long as the customer meets his payment obligations, does not default on payment and, in particular, does not file for insolvency proceedings. LBX undertakes to release securities at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
§ 5 Termination
If it is contractually stipulated that LBX must provide a permanent service, the first period of use begins on the date of the first provision of the service. It lasts for at least six months and ends at the end of the respective month. The continuous service can not be canceled until the end of the first period of use. Termination must be sent to LBX by registered letter at least three months before the end of the period of use, unless otherwise specified in the contract. Unless terminated in due time, the contract is automatically renewed for another six months.
§ 6 payments
Decisive are the individual contractually agreed, possibly staggered payment terms and amounts. In the absence of such an agreement, LBX's invoices are due for payment in purely net terms. A set-off against LBX's claim for remuneration is only admissible with undisputed or legally established claims. LBX can in principle demand 40% of the order value when placing the order and the remainder upon delivery of the goods or service. If there is a factual reason and there are no major concerns of the customer, LBX can also demand advance payment amounting to 100% of the order value. If the fulfillment of a claim for payment is jeopardized due to a significant deterioration in the financial circumstances of the customer that occurred after the conclusion of the contract, LBX can demand advance payments, retain goods not yet delivered and cease further work. LBX is also entitled to these rights if the customer is in default of payment for deliveries based on the same legal relationship. LBX is entitled to resell and assign trade receivables to third parties for financing purposes.
§ 7 Acceptance and liability for defects
The customer must check the conformity of the delivered goods as well as the pre-and intermediate products sent for correction in any case. The risk of any errors passes to the customer with the print approval declaration / production maturity declaration, insofar as these are not errors that could only arise or be identified in the production process subsequent to the print approval declaration / production maturity declaration. The same applies to all other release declarations of the customer. If the contract is a commercial transaction for both parties, the customer must inspect the goods immediately upon receipt (within five working days) and, if a defect shows, notify LBX immediately in writing. If the customer omits this announcement, the goods are considered approved. This does not apply in the event that it is a hidden error. The customer bears the full burden of proof for all claims, in particular for the defect itself, for the time of the discovery of the defect and for the timeliness of the complaint. LBX warrants that its products are free from defects for a period of one year from delivery. The warranty claims are initially limited to repair or replacement at LBX's discretion. If the supplementary performance fails, the customer may in principle demand, at his discretion, a reduction of the remuneration (reduction) or cancellation of the contract (withdrawal). In the event of a minor breach of contract, especially in the case of only minor defects that are reasonable for the customer, the customer has no right of withdrawal. If the customer chooses to withdraw from the contract or reduce the price due to a legal or material defect after failed supplementary performance, he is not entitled to any damages due to a defect. Any further warranty claims, in particular for damages that have not occurred in the service provided by LBX itself, are excluded unless LBX is guilty of intent or gross negligence. In the case of a merely negligent breach of duty by LBX or by our vicarious agents, our liability is limited to the damage typical for the contract. Defects of a part of the delivered goods do not entitle to the complaint of the entire delivery, unless the partial delivery is of no interest to the customer. In the case of colored reproductions in all manufacturing processes, slight deviations from the original can not be objected to. The same applies to the comparison between other templates (eg digital proofs, proofs) and the final product. Subcontracting (including data carriers, transferred files) by the customer or by a third party engaged by the customer is not subject to an examination obligation on the part of LBX. This does not apply to obviously unworkable or unreadable data. In the case of data transmissions, the customer must use protective programs for computer viruses that comply with the latest technical standards before they are sent. The data backup is the sole responsibility of the customer. LBX is entitled to make a copy. The warranty obligation shall cease to exist if defects in the delivered service are due to improper intervention or improper operation and use of the customer or third party or inappropriate use of the delivered service by the customer or third parties.
§ 8 Liability and limitation of liability
LBX is liable according to the legal regulations. For slightly negligent breaches of duty LBX's liability is limited to the typical damages. This also applies to slightly negligent breaches of duty by its legal representatives or vicarious agents. LBX and its vicarious agents are not liable to contractors in case of slightly negligent breach of immaterial contractual obligations. The strict liability of LBX and its vicarious agents according to § 538 paragraph 1 BGB due to errors that were already present at the time of the conclusion of the contract is excluded. Claims for damages of the customer due to a defect become statute-barred after one year from delivery of the goods, unless LBX fraudulently concealed a defect. The above limitations of liability do not apply to claims of the customer from product liability and guarantees. Furthermore, the limitations of liability shall not apply to physical and health damages attributable to us or loss of life of the customer. LBX and its vicarious agents are not liable for the information provided about the services of LBX, neither for their completeness, correctness or topicality, nor for the fact that they are free from third-party rights. If the customer supplies materials for services provided by LBX, the customer shall be liable for having all rights of use and exploitation of the materials supplied, which are required by the project for the use and the use of the service by LBX. The Customer indemnifies LBX from any claims asserted against LBX by third parties for the alteration, transfer or other use of such programs, data, information, image and sound materials, etc. Operational disruptions - both in the operation of LBX and in that of a supplier - such. For example, strikes, lockouts and all other cases of force majeure shall only entitle the customer to withdraw from the contract if the customer can no longer be expected to wait any longer, otherwise the agreed delivery time will be extended by the duration of the delay. However, withdrawal from the contract is possible at the earliest four weeks after the occurrence of the disruption described above. If claims for damages are asserted, they must be brought suitably within four months after written rejection by LBX. Subsequent assertion is excluded, unless a procedure for securing evidence has been initiated.
§ 9 secrecy, privacy
LBX guarantees that all persons entrusted by LBX with the execution of a contract know and adhere to the relevant data protection regulations in their currently valid version. Customer-sensitive data is protected by LBX or the service providers according to the state of the art. LBX undertakes to provide all information obtained in the context of the individual contract and its implementation, in particular plans, technical drawings and representations, project and time schedules, cost and profitability calculations, etc. (hereinafter "documents"), to the extent that these are individual to the customer have been made or provided by him to keep secret. LBX stores the name, address and the data of the customer otherwise required in the context of the contractual relationship and for customer service for the execution of the contractual relationship.
§ 10 Software usage
If software is included in the scope of delivery, the customer is granted a non-exclusive right to use the supplied software including its documentation. The customer is only entitled to duplicate the software insofar as this is necessary for the contractual use. The customer is entitled to create a single copy of the delivered programs for backup purposes. If, for reasons of data security, a regular backup of the database including the programs used is absolutely necessary, the customer is entitled to make backup copies in the required number. The backup copies created in this way may only be used for archiving purposes. The authorization of the customer to reproduce the program code or to change the software under the conditions of § 69 e (1) UrhG remains unaffected. Further duplications of the software are inadmissible. All other rights to the software and the documentation including the copies remain with LBX or the software supplier. Sublicensing is not permitted. Markings of the software, in particular copyright notices, trademarks, serial numbers or similar, may not be removed, altered or made illegible. Adjustments and / or changes to the software made at the request of the customer must be remunerated separately, insofar as they are not required for maintenance or for securing contractual use. The simultaneous multiple use of the programs, in particular within the framework of a network, is inadmissible, unless LBX expressly agrees in this regard. LBX may make its consent conditional on the payment of additional compensation. LBX owes consulting services in connection with the provision of software only if this is expressly and separately agreed between the parties. Upon termination of the contract, the customer must return to LBX the programs on the original data media including their documentation. Copies made must be completely and finally deleted.
§ 11 Rights to the services of LBX
If LBX produces works protected by copyright for the customer, the customer is granted the rights of use of the works only after full payment of the agreed remuneration. Unless otherwise agreed in writing, the customer is granted a simple, non-exclusive and non-transferable right of use for use in the agreed manner of use. The customer agrees that LBX may use the services and other works and works as well as with the name of the customers self-promotion in all types of media. The rights and objects used by LBX for the production of the contract product, in particular templates, raw materials, print media, data and the like. a. reusable goods as well as semi-finished and finished goods will only be stored after prior agreement and against special remuneration beyond the delivery date. If the aforementioned objects are to be insured, then the customer has to arrange this himself in case of missing agreement. After proper fulfillment of the contract, the customer is entitled to all rights to the production service provided by LBX for the contractually agreed purpose. Any further use is only permitted with the explicit written consent of LBX. Restrictions apply to services purchased by LBX for the customer, be it word, image, music or artistic achievement. These will be announced to the customer in individual cases by LBX. The customer undertakes to observe these restrictions.
§ 12 Other duties of cooperation of the customer
The customer is obligated to provide information, documents, texts, photos and other contributions of its own, the services and / or provision of which are necessary for the performance of LBX's services, in due time and under the granting of all appropriate usage rights. If the customer lacks the corresponding right of use, he releases LBX from all compensation claims of third parties.
§ 13 Place of fulfillment, place of jurisdiction, effectiveness
Place of fulfillment and place of jurisdiction is Mainz for all disputes arising from the contractual relationship including check, bill of exchange and certificates. However, LBX is also entitled to sue at the customer's location. The contractual relationship is governed by German law. UN-Kaufrecht is excluded. Should a provision of the conditions or the other contractual agreements be ineffective, the validity of the remaining provisions shall not be affected thereby. The contracting parties are obliged to replace an ineffective provision with a measure which is closest to their nearest economic point of view. All changes, additions, limitations or extensions of the contract require a written agreement between the contracting parties to be effective. This also applies to a waiver of this written form requirement.