General Terms and Conditions for Die Making Companies

The following Terms and Conditions (GT&C) apply to all business transactions that are pertain to the Suppliers' commercial operation. They shall be used vis-à-vis

1. Merchants if the contract pertains to the commercial operation
2. Legal entities and public funds and/or assets

They also apply vis-à-vis foreign Customers.


I. Area of Applicability
The General Terms & Conditions hereinbelow apply to any and all contracts formed with us, including in those individual cases when they are not explicitly referenced. Any terms and conditions set forth by the Customer that conflict with our GT&Cs shall not be deemed binding for us, even in the event that we do not explicitly object to them. The General Terms & Conditions hereinbelow also apply in the event that we carry out the Customer’s orders unconditionally in full knowledge of the Customer’s conflicting or deviating terms and conditions. If the Customer’s offer (order) is accepted with an amendment of its content, the contract shall be deemed formed in accordance with the declaration of acceptance if the Customer does not promptly object.
Any documentation that is part of the Supplier’s quote, such as illustrations, drawings, and measurements serve only as rough approximations to the extent that they have not been explicitly designated as binding. The Supplier retains all ownership rights, copyrights, and any other industrial/intellectual property rights to this documentation, which may not be made accessible to third parties. If an order is transmitted via remote data transmission, the data received or downloaded by the Supplier shall be deemed binding. Ancillary agreements and amendments must be confirmed by the Supplier in written form.


II. Terms of Payment
The prices apply ex works, including loading, however, exclusive of packaging and transport insurance. In the absence of special agreements or arrangements, the Supplier is entitled but not obligated to package the merchandise to be delivered at the Customer’s cost and risk and to ship and/or insure it itself or through third parties.
The applicable statutory value-added tax shall be added to the prices. The application of a discount is permitted only in the event of a specific written agreement in this regard between the Supplier and the Customer. The purchase price is understood net (without deduction of any discounts), due immediately upon receipt of the invoice by the Purchaser (The Customer) to the extent that no other term of payment is specified on the order confirmation. Payment shall be deemed made only when the amount paid is available to the Supplier. In the event of payments by check, payment shall be deemed made only when the check has been cashed. In the event of late payment, the Supplier is entitled to charge interest. The previous provision does not exclude a claim for additional damages by the Supplier. The previous provision does not prevent the Customer from supplying proof of lower damages.
The Customer is entitled to offset claims by the Supplier, including in the event of notices of defects or counterclaims, only if the counterclaims have been legally established or have been recognized by the Supplier or are undisputed. The Customer is entitled to exercise the right of retention only insofar as its counterclaim is based on the same contractual relationship.


III. Term of Delivery and Performance
The term of delivery is not binding. It does not begin to run before the Customer has not provided all documentation that must be obtained, as well as any permits and releases. This term of delivery shall be deemed as complied with if the deliverable has left the factory or if notice has been given that it is ready for shipment. The term of delivery shall be extended to a reasonable degree in the event of measures within the scope of labor disputes, including but not limited to strikes and lockouts, as well as in the event of unforeseen obstacles that are beyond the control of the Supplier, provided that it can be proven that such obstacles have a significant effect on the completion and/or delivery of the deliverable.
This also applies if sub-suppliers are affected by the stipulated circumstances. The Supplier is not responsible for the circumstances listed hereinabove if they occur during an already existing delay. In important cases, the Supplier shall notify the Customer as soon as possible with regard to commencement and end of such obstacles.
If completion or shipment is delayed upon the Customer’s request, any additional costs that are incurred hereby shall be invoiced promptly by the Supplier and sent to the Customer for payment.
However, once the grace period has been set and has elapsed without action, the Supplier is entitled to otherwise dispose of the deliverable and to make delivery to the Customer with a reasonably extended term of delivery.


IV. Transfer of Risk
Once the deliverable has been transferred to the shipper or once it has been shipped, risk is transferred to the Customer, including in cases where partial deliveries are being made or the Supplier has undertaken to perform other services. If shipment is delayed for reasons that fall under the Customer’s purview, transfer of risk to the Customer occurs on the date that the deliverable is ready for shipment. Once delay of acceptance has occurred, the risk of accidental deterioration and/or loss of the deliverable is transferred to the Customer.
Delivered items that display insignificant defects and/or deficiencies shall be accepted by the Customer without prejudice to its legal rights regarding warranty. The Supplier shall be notified promptly. The statutory obligation to give notice of defects and the legal consequences of non-fulfillment of these obligations to give notice of defects shall remain unaffected by the obligation to accept delivery.
Partial deliveries are permitted.


V. Retention of Title 
Until all receivables have been paid, including all unpaid balances on current accounts, to which the Supplier is currently entitled or will be entitled to in the future vis-à-vis the Customer, the Supplier shall retain title to the delivered goods. In the event of conduct violating the terms of the contract by the Customer, e.g., delay in payment, the Supplier has the right to repossess the deliverable after a prior grace period has been set. If the Supplier repossesses the deliverable, this represents a rescission of the contract. If the Supplier mortgages or pledges the deliverable, this represents a rescission of the contract. The Supplier is entitled to otherwise utilize, dispose of, or recycle the deliverable after it has been repossessed. After deducting a reasonable amount for utilization, disposal, or recycling costs, any remaining proceeds shall be set off against any amounts owed by the Customer.
Resale is permitted only with the written consent of the Supplier and transfer of the retention of title in favor of the Supplier to the buyer. Pledging or collateral assignments are not permitted. In the event of attachment or seizure or any other dispositions by third parties, the Customer shall promptly notify the Supplier.
The Customer assigns as of this point in time any claims or receivables that may accrue from resale or based on any other legal grounds (insurance, illegal actions) with regard to the deliverable (including all unpaid balances on current accounts) in full to the Supplier as collateral; the Supplier accepts the assignment. The Supplier authorizes the Customer to collect the receivables assigned to the Supplier on the Customer’s own behalf and for the Customer’s account. The authorization to collect receivables can be revoked at any time if the Customer does not meet its payment obligations. The Customer is not authorized to assign these receivables for the purpose of their collection by way of factoring unless this is accompanied by the factor’s obligation to provide consideration in the amount of the receivables directly to the Supplier as long as the Supplier is entitled vis-à-vis the Customer to collect receivables. The Supplier is obligated to release the collateral, to which the Supplier is entitled, insofar as the market value of the collateral exceeds the value of the receivables to be secured by more than 10%, whereby the choice of the collateral to be released shall be incumbent upon the Supplier.


VI. Warranty/Liability
1. Any warranty claims made by the Customer shall be accepted only if the Customer has properly complied with its obligation to investigate and give notice of defects pursuant to Section 377 of the German Commercial Code. The Customer’s obligation to investigate shall include but not be limited to dimensions (e.g., dimensions of use and overall dimensions, line heights and widths, cross-section, execution, whether true to side, function, and quality). Warranty is excluded for damages incurred due to the following causes to the extent that they are not the fault of the Supplier: unsuitable, improper, or negligent use and handling, improper storage, faulty installation and/or putting into operation by the Customer or by third parties, normal wear and tear, improper operational equipment or materials, effects of the material to be processed, chemical effects.

2. Insofar as there is a defect or deficiency in the deliverable for which the Supplier is responsible, the Supplier is obligated to provide subsequent performance, excluding the Customer’s rights to withdraw from the contract or to reduce the purchase price (abatement), unless the Supplier is entitled to refuse subsequent performance under the law. The Customer shall grant the Supplier a reasonable period of time to complete subsequent performance. Subsequent performance can be remedy of the defect and/or deficiency (subsequent rectification) or the delivery of new merchandise at the discretion of the Customer. In the event that the defect and/or deficiency is remedied, the Supplier shall bear the necessary expenses to the extent that they are not higher because the deliverable is at a location other than the place of fulfillment. In any case, the Supplier is entitled to choose between remedy of the defect and/or deficiency and a delivery of new merchandise.
If subsequent performance is unsuccessful, the Customer can at its discretion demand a reduction of the purchase price (abatement) or can withdraw from the contract. Subsequent performance shall be deemed failed after the second, unsuccessful attempt unless additional attempts to subsequently remedy the defect are appropriate due to the nature of the deliverable and if they are reasonable for the Customer.
Claims for compensatory damages due to the defect under the provisions stipulated hereinbelow can be asserted by the Customer only after subsequent performance has been unsuccessful. The Customer’s right to assert additional claims for compensatory damages under the provisions stipulated hereinbelow shall remain unaffected hereby.

3. The Customer’s warranty claims shall expire by limitation one year after delivery of the deliverable to the Customer unless the Supplier has fraudulently concealed a defect; in this case the statutory provisions shall apply.

4. The Supplier is fully liable pursuant to the statutory provisions for damages to life, limb, and health that are the result of a negligent or intentional breach of duty by the Supplier, its legal representatives, or its vicarious agents as well as for damages under the Product Liability Act [Produkthaftungsgesetz]. For damages that are not covered by sentence 1 and that are the result of intentional or grossly negligent breaches of contract and/or fraudulent action by the Supplier, its legal representatives, or its vicarious agents, the Supplier shall be liable pursuant to the statutory provisions. In this event, liability for damages is limited to reasonably foreseeable damages that are typically incurred to the extent that the Supplier, its legal representatives, or its vicarious agents have not acted with intent.

5. Any additional liability for damages is excluded regardless of the legal nature of the asserted claim; this applies particularly but not specifically to claims in tort or reimbursement or claims for reimbursement of fruitless expenses instead of performance. To the extent that liability is excluded or limited, this also applies to personal liability on the part of the Supplier’s salaried employees, workers, staff, representatives, and vicarious agents.

6. The Customer’s claims for compensatory damages due to a defect and/or deficiency shall expire by limitation one year after delivery of the deliverable. This does not apply in cases of injury to life, limb, or health where the Supplier, its legal representatives, or its vicarious agents are at fault or if the Supplier or its legal representatives have acted with intent or with gross negligence or if its menial vicarious agents have acted with intent.

7. For the purpose of processing notices of defects, the Customer shall send the delivered product including all order documentation, a precise description of the defect and, if possible, a die-cut sheet to the Supplier.


VII. Ancillary Obligations
If, due to a fault on the part of the Supplier, the deliverable cannot be used by the Customer in accordance with the contract due to deficient or defective execution of recommendations and consultations that occurred prior to or after conclusion of the contract as well as due to deficient or defective execution of other ancillary contractual obligations, including but not limited to instructions for the operation and maintenance of the deliverable, the provisions of the previously stipulated and the following sections shall apply mutatis mutandis.


VIII. Place of Fulfillment, Legal Venue, Applicable Law
1. Place of fulfillment and legal venue for deliveries and payments (including disputes regarding checks and bills of exchange) as well as all disputes that may arise between the Supplier and the Customer relative to the contracts concluded between the Supplier and the Customer is the location of the Supplier’s registered office. The Supplier is also entitled to bring legal action against the Customer at the location of the Customer’s registered office.

2. The relationship between the Contracting Parties shall be governed exclusively by the law of the Federal Republic of Germany. The application of the provisions of the Uniform Law for the International Sale of Goods and/or the United Nations Convention on Contracts for the International Sale of Goods is excluded.


Published by the Association of German Diemakers (3.2006)