Terms and Conditions Dexsa Marketing GmbH
1 Scope of Application
(1) These terms of sale apply to entrepreneurs, legal entities under public law, or special funds under public law and private individuals within the meaning of Section 310 (1) of the German Civil Code (BGB). We only recognize terms of the purchaser that conflict with or deviate from our terms and conditions if we expressly agree to their validity in writing.
(2) These terms and conditions also apply to all future transactions with the contractual partner, insofar as they involve legal transactions of a related nature, even if they are not separately agreed upon again.
2 Offer and Conclusion of Contract
(1) All our offers are subject to change and non-binding unless expressly marked otherwise. Insofar as an order is to be regarded as an offer pursuant to Section 145 BGB, we may accept it within two weeks.
(2) The written contract, including these General Terms and Conditions, is solely authoritative for the legal relationship between us and the contractual partner. Oral agreements on our part prior to the conclusion of the contract are non-binding and are legally replaced by this contract. Amendments to the agreements made, including these terms and conditions, require written form to be effective. With the exception of our managing directors and authorized signatories (Prokuristen), our employees are not entitled to make oral agreements.
(3) Our specifications regarding the subject matter of the contract are only approximately authoritative unless usability for the contractually intended purpose requires exact conformity. These specifications are not guaranteed quality features, but descriptions or identifications of the delivery or service. Customary deviations that occur due to legal regulations or represent technical improvements are permissible, provided they do not impair usability for the contractually intended purpose.
3 Documents Provided
(1) We reserve ownership and copyrights to all documents provided to the purchaser in connection with the placement of the order, such as calculations, offers, drawings, etc. These documents may not be made accessible to third parties unless we grant the purchaser our express written consent. Insofar as we do not accept the purchaser’s offer within the period specified in Section 2, we may demand that these documents be completely destroyed, including all copies, or returned to us.
4 Prices and Payment
(1) Unless otherwise agreed in writing, our prices are ex works and exclusive of value-added tax at the applicable rate.
(2) Payment of the purchase price must be made exclusively to the business account specified in the purchase contract.
(3) Unless otherwise agreed, the purchase price is to be paid to us within 7 days of delivery. Default interest will be charged at a rate of 8% above the respective base interest rate. We reserve the right to assert higher damages caused by default.
(4) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes that occur 3 months or later after the conclusion of the contract.
5 Set-off and Rights of Retention
(1) The contractual partner is only entitled to set-off if their counterclaims have been legally established or are undisputed. The contractual partner is only authorized to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
(2) We are entitled to perform outstanding deliveries or services only against advance payment or security if, after the conclusion of the contract, we become aware of circumstances that are likely to significantly reduce the creditworthiness of the contractual partner or through which payment of our claims by the contractual partner is jeopardized.
6 Delivery and Delivery Time
(1) Unless otherwise agreed, our deliveries are made ex works.
(2) The commencement of the delivery time specified by us presupposes the timely and proper fulfillment of the contractual partner’s obligations. The defense of non-performance of the contract remains reserved.
(3) We are not liable for impossibility of delivery or for delays in delivery, insofar as these have been caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g., operational disruptions of all kinds, difficulties in procuring materials, strikes, difficulties in obtaining necessary
official permits, official measures) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for us, we are entitled to withdraw from the contract. In the event of temporary obstacles, delivery and performance periods shall be extended by the period of the obstruction plus a reasonable start-up period. Insofar as the contractual partner cannot be expected to accept the delivery or service as a result of the delay, they may withdraw from the contract by immediate written declaration to us.
(4) If the contractual partner is in default of acceptance or culpably violates other duties of cooperation, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved. Provided the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the contractual partner at the point in time at which they have fallen into default of acceptance or debtor’s delay.
(5) In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the delivery value, but not exceeding 10% of the delivery value.
(6) Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
7 Place of Performance and Transfer of Risk
(1) Unless otherwise agreed, the place of performance and transfer of risk for all liabilities arising from the contractual relationship is Wörth.
(2) In the case of ex-works contracts, the risk passes to the contractual partner at the latest upon handover of the goods.
8 Retention of Title
(1) We reserve ownership of the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the contractual partner acts in breach of contract.
(2) As long as ownership has not yet passed to them, the contractual partner is obliged to treat the purchased item with care. The contractual partner is entitled to resell the reserved goods in the normal course of business. The contractual partner hereby assigns to us the claims of the customer from the resale of the reserved goods in the amount of the final invoice amount (including VAT) agreed with us. This assignment applies regardless of whether the purchased item has been resold without or after processing. The contractual partner remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the contractual partner meets their payment obligations from the proceeds received, is not in default of payment, and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.
(3) We undertake to release the securities to which we are entitled at the request of the contractual partner insofar as their value exceeds the claims to be secured by more than 50%.
(4) If we withdraw from the purchase contract in the event of conduct by the contractual partner that is in breach of contract, we are entitled to demand the return of the reserved goods.
9 Copyrights
(1) The copyrights for all image, video, sound, media, and creative products from our offers and orders remain with us. Unauthorized disclosure to third parties or use without our consent is not permitted.
10 Warranty and Notification of Defects
(1) Warranty rights of the contractual partner presuppose that they have properly fulfilled their inspection and notification obligations owed under Section 377 of the German Commercial Code (HGB).
(2) Claims for defects expire 3 months after delivery of the goods supplied by us to our contractual partner.
(3) Our consent must be obtained before any return of goods.
(4) If, despite all care taken, the delivered goods exhibit a defect that already existed at the time of the transfer of risk, we will, subject to timely notification of defects, repair the goods or deliver replacement goods at our discretion. We must always be given the opportunity for supplementary performance within a reasonable period.
(5) If the supplementary performance fails, the contractual partner may withdraw from the contract or reasonably reduce the remuneration.
(6) Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, or in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground, or due to special external influences not presupposed under the contract. If improper repair work or modifications are carried out by the contractual partner or third parties, no claims for defects shall exist for these and the resulting consequences.
(8) Claims by the contractual partner for expenses required for the purpose of supplementary performance, in particular transport, travel, labor, and material costs, are excluded insofar as the expenses increase because the goods delivered by us were subsequently moved to a location other than the purchaser’s establishment.
11 Liability for Damages
(1) Our liability for damages, regardless of the legal grounds, in particular due to delay, impossibility, breach of contract, incorrect delivery, defective delivery, breach of duties during contract negotiations, and tort, is limited in accordance with this section, insofar as fault is relevant in each case.
(2) We are not liable
1. in the case of simple negligence by our executive bodies, legal representatives, employees, or other vicarious agents.
2. in the case of gross negligence by our non-executive employees or other vicarious agents, provided it does not involve a breach of essential contractual obligations.
(3) Insofar as we are liable for damages on the merits according to the preceding paragraphs, liability is limited to damages that we foresaw at the time of concluding the contract as a possible consequence of a breach of contract or that we should have foreseen taking into account the circumstances known to us or which should have been known to us by applying customary care. Indirect damages and consequential damages resulting from defects in the
(4) delivery item are also only compensable insofar as such damages are typically to be expected when the delivery item is used as intended.
(5) In the event of liability for simple negligence, our obligation to compensate for property damage or personal injury is limited to an amount of €1 million per claim, even if it involves a breach of essential contractual obligations.
(6) The above exclusions and limitations of liability apply to the same extent in favor of our executive bodies, legal representatives, employees, and other vicarious agents.
(7) The limitations in this section do not apply to our liability for intentional conduct, for guaranteed quality features, for injury to life, body, or health, or under the Product Liability Act.
12 Assembly Work
By accepting a service according to the delivery note, the client confirms the proper receipt of the corresponding service and henceforth releases DEXSA from the risk of consequential damages from assembly work.
13 Final Provisions
(2) The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our place of business, unless otherwise stated in the order confirmation.
(3) Should individual provisions of this contract be or become invalid or contain a gap, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or fills this gap.
Printing Conditions
(1) You are entitled to the statutory warranty rights for defects, unless otherwise regulated below.
(2) If the delivered item / the delivered service/goods do not correspond to the quality agreed between the client and the contractor, or if they are not suitable for the use presupposed under the concluded contract or for general use, or if they do not have the properties to be expected based on public statements by the contractor, the contractor is obliged to provide supplementary performance. Only if the supplementary performance fails twice can the client either withdraw from the contract or reasonably reduce the purchase price.
(3) Warranty rights are excluded if the delivered goods deviate only insignificantly from the agreed quality or if the contractual or customary use of the goods is only insignificantly impaired.
(4) Material changes that are age-related or occur due to environmental conditions do not constitute a defect. Minor deviations from the original cannot be complained about in colored reproductions in all manufacturing processes. For technical reasons, this also applies to the comparison between other templates (for example, proofs and print data) – even if these were created by the contractor – and the final product. Due to production reasons, the grain direction of the paper cannot be taken into account during placement. A slight cracking during folding caused by this, as well as deviations in the strength or stiffness of the product, must be accepted and cannot be complained about. For production-technical reasons, folding, punching, and trimming tolerances of up to 1 mm may occur. These must be accepted and cannot be complained about.
(5) Up to 10% over- or under-delivery of the ordered goods must be accepted. For books and magazines, an over- or under-delivery of up to 5% must be accepted. This includes production-related waste of the upper and lower sheets that are not sorted out, spoilage, setup copies of processing machines, and start-up sheets.
(6) Obvious defects must be reported to us within a period of 1 week from receipt of the goods; otherwise, the assertion of warranty claims is excluded. Timely dispatch is sufficient to meet the deadline; the burden of proof for this lies with you. If you are a merchant, the regulations of Section 377 HGB apply.