Terms and Conditions of delivery and payment for the graphic industry
As of: July 2017
I. SCOPE OF APPLICATION
(1) The following terms and conditions apply to all delivery, performance of services and offers given to contractors. They are valid for all future business dealings, including when they are not expressly stipulated.
Non-recognition by the client regarding the sale or delivery terms and conditions offered will be rejected.
(2) Variance from these conditions is only acceptable, if the contractor has explicitly agreed in writing to such terms.
(3) These terms and conditions remain binding, even if for any particular reason they are not effected.
(1) The prices offered by the contractor are valid under the condition that the data for the order remains unchanged after it is submitted.
The price quoted by contractor does not include value added tax, provided that, according to consumer law, the information or the offer is not directed at consumers.
The prices quoted apply to the work. This does not include freight, postage, insurance or other forwarding costs.
If there is nothing else included in the offer, it then deals with all required materials according to the contract, such as print-substrate (paper, cardboard, etc), printing equipment (film, proofs, plates, and die cutting form) and bookbinding materials. Like with all daily varying costs, the price can also vary depending on the time of production.
Included in the price is the basic package of printed matter. If the contractor desires a particular packaging (cardboard and cardboard boxes, palettes, crates), this can be organised at a cost to the contractor.
If the palettes or crates are returned in acceptable condition within four weeks of delivery date, up to two thirds of the cost of the crates or palettes will be credited to the contractor.
(2) The contractor requires recommitment to a modified order, if the formulation of the order is in some way modified.
In the case of an objection to a change in the content of a confirmed order a letter must be received within two working days of the receipt of the change, failing which the new content of the order is binding.
(3) In other respects, the price is fundamentally nonbinding, unless commitment to the contract is expressly stated. After the presentation of the price but before the settlement of the delivery the contractor maintains the right, without any prior notice, to include any price increases in the invoice, which may occur, these include: an increase in measurable costs (e.g. film, plates, data-carriers, paper, cardboard, print-forms, repros, binding materials, data-transfer costs, etc.) as well as personnel costs (this is based on collective contractual stipulations or legal regulations), these conditions are expressly authorised by the client.
(4) Subsequent changes instigated by the client (e.g. client amendments and editing), including machine stoppage, will be charged by the contractor. The repetition of press proofs, which are negligibly different to the originally agreed sample and requested by the client, are valid as subsequent changes.
(5) Transgressions from the offer (preliminary price) effected by the client are also subject without notification to the contractors approval. In such cases the client waives the right to rescind. Changes in or additions to the order can be included in the invoice at proportionate prices.
(6) Drafts, proofs and final artwork costs are categorically and separately stated in the invoice and are not included in the order price. This is also valid for special requests, which exceed the norms, e.g. the production of samples or post press additions. At the request of the client finished samples and drafts remain the property of the client and are separately invoiced, this includes when the order does not come to completion.
(7) The client bears the costs related to data-transfer requested by the client (e.g. per ISDN). In the case of an error in the data-transfer, the contractor provides no warranty and bears no liability.
The contractor invoices its deliveries and services provided on the day in which the product is delivered (partially or entirely). The contractor will also store the product or hold it ready for the customer. The price quoted on the invoice can differ from the price quoted in the order, if changes, those which are mentioned in part II, occur, if changes occur after the preliminary order is placed or if changes are later introduced by the client.
IV. CONDITIONS OF PAYMENT
(1) Payment (net price including value added tax) its due within thirty calendar days of the billing date with no rendering of a reduction. Upon payment within eight calendar days of the billing date the client is granted a 2% discount from the invoiced amount, provided that the invoice does not account for freight, postage, insurance and/or other transport costs, including the ARA (prepaid expenses and deferred charges) licence charges (das ARA-Lizenzentgelt).
Bills of exchange and cheques are only accepted after a particular agreement and the payment is confirmed by the bank. Refinancing costs and charges are borne by the client and are payable immediately. For the timely submission, presentation, notification and return of a dishonoured bill of exchange the contractor shall not be liable, provided the contractor or an agent of the contractor is not guilty of intent or gross negligence.
For bills of exchange, cheques or credit transfers each day is significant, for which the contractor’s bank is responsible.
(2) The contractor retains the right to an advance payment for the production of large paper or card quantities, particular materials or preliminary work.
(3) Before a deposit is paid the contractor is under no obligation to fulfil the order. If necessary subsequent or further consequences (e.g. non-compliance with delivery deadlines) are borne by the client.
(4) The client can only offset an undisputed or legally binding receivable. A client, who is entered as such in the commercial register (UGB), does not adhere to the right of retention or the right to offset.
(5) Justified complaints do not authorise non-payment of the entire invoice, a measured part of the invoiced amount is demanded.
V. DELAY IN PAYMENT
(1) In the event of a client’s degeneration into pecuniary circumstances or if there is a delay in payment the contractor maintains the right to immediately demand payment and the payment of other invoices, which are not immediately due. Moreover, the contractor maintains the right to make continuous orders dependent on the receipt of pro-rata payments.
Further the contractor maintains the right to hold back products which have not yet been delivered and if non-payment for a continuous order with pro-rata payments occurs; the contractor maintains the right to cease production.
These rights also stand up if the client fails to make the payment, despite a late payment notice.
(2) In the event of a delayed payment the client is subject to an interest charge to the amount of 4% points according the EURIBOR (Euro Interbank Offered Rate). The enforcement of further damages caused by delay cannot be excluded.
(3) In the event of the contractor defaulting the Client undertakes all reminder and collection expenses, unless the necessary legal procedures are put into place, at which point the client enters a special agreement to undertake at most the remuneration costs of the switched-collection agency, which are yielded by the liaison officer (LNO) of the Federal Ministry for Economics and Labour (BMWA) at the maximum rates due to collection agencies.
If the contractor bears the reminder costs, the client is bound to a fee of €15 per succeeding reminder and a fee of €5 per half year for the compiling of evidence and credit reports.
Furthermore, any subsequent damages, particularly those that arise due to non-payment of higher interest on the part of the contractor, are reimbursed regardless of fault on late payments.
VI. DELIVERY DATE
(1) The delivery period begins on the day the order is placed, insofar as all documents are clearly and conclusively available to the contractor and that all deviations are accounted for in the confirmation of the order; the period ends the day in which the goods arrive at the premises or the client.
(2) The stipulated delivery date is fundamentally an approximate date, unless they are expressly stated in writing as fixed dates.
In the event that fixed delivery dates are stipulated, the order will state the cooperation-duties (e.g. non-flexible delivery date, checking the preliminary and intermediate dates, delivery of films, editing, etc.) and the subsequent dates for each step. If the client fails to uphold his/her duties, i.e. he/she fails to meet the stipulated dates; the contractor is no-longer bound to the delivery date. This is also valid if the client at a later date makes a change to the order. Furthermore, the contractor has a claim to compensation if a cost is incurred.
(3) The delivery date may be altered depending on time required for the testing and pulling of proofs.
(4) In the event of a delay in delivery after a period of grace the client can request either fulfilment of the order and compensation or, a further period of grace after the agreement is complete withdrawal from the contract. The grace period depends on the type and volume of order.
(5) In the event that a higher authority or other unforeseeable, extraordinary or unavoidable circumstances occur, e.g. difficulties obtaining the required materials, an interruption to operations, industrial action, transport shortage, regulatory interventions, power stoppages, etc. –if suppliers or the contractor incur a delay, – if the contractor becomes impaired, the delivery period is proportionally altered. If in the case of the named circumstances the delivery cannot be made or the service cannot be provided or used the contractor is free from any contractual obligations. Provided that the delay in delivery is longer than two months the client is within his rights to rescind from the contract. Upon the extension of the delivery period, or if the contractor for a particular reason freed from the contractual obligations, the client cannot claim any damages. The above-mentioned cases are only valid if the client is immediately informed.
(1) Deliveries take place unless otherwise stipulated at the establishment of the client, at the client’s own risk.
Transport insurance is only undertaken upon the express wish of and cost to the client. The risk is transferred to the client as soon as the delivery is conveyed upon the client, or in the case that it is delivered to the client’s warehouse. If the delivery is delayed upon the request of the client, after it is registered that the consignment is ready for dispatch the risk is conveyed upon the client.
(2) Oversupply or undersupply is allowed (up 10%) and is taken pro-rata as a basis for printing. In the case of provided material, the boundaries of tolerance are additionally considered.
For consignments of special paper, the acceptable percentage variance increases according to the weight of the order, e.g. less than 1,000 kg means 10 or 20% and less than 2,000 kg means 8 or 15%.
VIII. TYPE/ PRINT MISTAKES AND ADJUSTMENTS
(1) If typing mistakes occur at fault of the contractor, they shall be corrected with no extra cost to the client.
(2) Amendments to the sample/ setting copy will be offset against labour hours spent (correction).
The contractor has no liability for the accuracy of changes made via telephone, fax or e-mail.
The client is liable for changes or corrections requested via e-mail, thus the client by appropriate means (e.g. via telephone or fax) is responsible for notifying the contractor immediately of the existence of said e-mail. This is valid especially in the case of late changes to imprinted, impressed or previously prepared proofs.
(3) Corrections are only performed upon express request of the client. The contractor therefore is entitled, without stipulation, to present corrections. In this case the client is obliged to approve the corrections. The contractor is authorised to set a reasonable period of time with the client in which to implement the corrections, after this period the proofs shall automatically be deemed approved. In the case that the contractor omits a correction, he/she is liable for the inaccuracy in the execution of the printing.
(4) The orthography of products in the German language prevails to the latest edition of Duden (“neue Rechtschreibung”).
IX. DEFAULT OF ACCEPTANCE
(1) The client is obliged without delay to accept the goods, which are according to the contract either sent or ready for collection; if the client defaults, the delivery is nonetheless assumed to take place on the day in which the contract states it should have, therefore the risk, in the case of accidental damage, is forwarded to the client.
(2) Upon default of acceptance or in the occurrence of a higher power preventing the delivery, the contractor is authorised to store the goods itself or with a forwarding agent at the expense and risk of the client.
X. COMPLAINTS/ GUARANTEES
(1) The client has to check in each case that the delivered products, all pre-proofs and intermediate products conform to their expressed wishes. The risk of any mistakes is passed onto the client upon sending the “ready for printing” declaration or “Druckreiferklärung”, provided that it does not involve mistakes, which subsequently emerge or become clear during the manufacture process.
The same is valid for all further release declarations given by the customer regarding further manufacture.
(2) Complaints (Claims) about obvious deficiencies must be indicated to the contractor immediately and definitively after the delivery. The contractor must be immediately informed of hidden defects either upon discovery or latest within 3 months of the goods being handed over to the client.
(3) The guarantee period for pliable products consists of three months.
(4) The assumption regulation §942 ABGB is final. The presence of deficiencies at the point of delivery must be proved by the client.
(5) The right of recourse, according to §933 b, second clause ABGB, lapses two years after the performance of the service for the client.
(6) In the case of a justified complaint the contractor is voluntarily excluded from making further claims, which include amended and/or compensatory deliveries, at that not exceeding the value of the order, unless a guaranteed feature is missing or the contractor or his agent impose intent or gross negligence. The same is valid in the case of a justified complaint about an amended or compensatory delivery. The client may demand to pay a reduced fee or rescind from the contract, in the event of a delayed or omitted or failed amended or compensatory delivery. The client may waive the contract if there are fundamental defects.
The liability of the contractor for consequential harm caused by a defect is debarred, unless the contractor or his/her agent is guilty of intent or gross misconduct.
(7) If the order involves contract processing or processing of printed materials, the contractor is not liable for the induced damages of contract or material processing, insofar as the damages are not due to intent or gross misconduct.
(8) In the case of partial deliveries, the regulations stand up for the delivered part of the order. The deficiency of a partial delivery does not authorise a complaint about the entire order.
(9) The client may not complain about negligible deviations from the original coloured reproductions after all printing methods/processes have been performed. The same is valid for the comparison between proofs and produced printed material, in particular if the paper used for the proof is different to the paper used in production. A guarantee of the original quality of colour, bronze, varnish, embossment, laminate and postage stamp gum is accomplished to the level in which the contractor’s supplier is bound.
(10) If the contractor presents a digital correctable proof before being declared “ready to print”, it is expressly referenced that the final product can contain deviations, which occur during the various production processes. Should a compulsory proof be requested, a subsequent sample will be presented at a cost to the customer.
(11) The contractor is liable for deviations in the texture of the materials to the point of having to claim against the supplier. If such a case occurs where the contractor needs to claim against a supplier, the contractor is free from liability. The client acts as a guarantor, insofar as claims against the pre-supplier are not the fault of the contractor or are not enforceable. The tolerance is measured according to each material, therefore the existing terms of delivery (customary to each industry).
(12) The contractor is in no way liable for damage which occurs because of inadequate storage of the finished goods by the client (i.e. if the client stores the goods and if the goods are not stored by the contractor).
(13) If faulty products can no longer be returned to the contractor, a warranty (a compensation for damages) will be put in place, upon proof of an accurate and recognised quality control method and the appropriate documentation is presented. The client acknowledges, in such a case, a quality control method based on the contractor’s documentation.
XI. CONDITIONS OF LIABILITY
(1) Compensation for damages is not possible, unless the damage is caused through intent or gross misconduct.
Compensation for damages causing below standard performance, is confined to the foreseeable damages and the size of the order, unless the damage is caused by intent or gross misconduct.
Limitations of liability are valid to the same extent for the contractor’s agents.
In commercial trade, the contractor is not liable for an agent’s gross misconduct, except where the blame for the gross misconduct lies with one of the contractor’s senior employees.
(2) In cases of liability monetary compensation can only be claimed when the liability regarding the volume of the order is limited. In this respect, it is recommended that the client acquires additional insurance.
If the contractor is at fault for damage (excluding gross negligence), he or she is limited to the value of the order. Loss of profit cannot be claimed.
(3) Compensation claims must be brought before the court within in six months of discovery of the damage or within three years of delivery or the provision of a service.
One year after delivery, or after the provision of a service, the client must present the evidence to the contractor.
(4) In the event that the liability of the contractor comes into consideration, he/she is free from liability, if he/she is privy to existing or enforceable claims against suppliers or processing partner companies.
(5) According to the product liability law, the duty to compensate for resulting property damage and product liability claims, which can be derived from other provisions, are excluded.
The limitations of liability are complete and binding to all possible clients, and include a commitment to further obligations.
The delivery item only provides a certainty that can be expected considering the material-specific properties.
XII. PROVIDED DATA AND MATERIALS
(1) Materials provided by the client, for example all submitted materials, films, data carriers, paper etc. are free to be delivered to the contractor’s premises. The arrival will be confirmed, but no responsibility will be taken for the correctness of the quantity of the delivered documents specified by the client. Only in the production process is the contractor in a position to inspect and review, and then the contractor becomes liable for mistakes or damages caused by the contractor during this process (see section XI).
There is no obligation for the contractor to test the materials or printing equipment, e.g. the composition, discs, and films, etc.) sent or transferred (e.g. by ISDN) by the client or a third party.
In particular, the accuracy and correctness of the data transferred, i.e. the data enclosed in the file sent, is not reviewed or checked by the contractor. There is also no liability ascribed to the contractor for mistakes made by the client through direct or indirect sending of printing equipment, and thus the contractor holds no liability for a mistake in the end product caused by a deficiency in the data that was delivered.
If a review should be carried out by the contractor, this and any corrections will be charged separately.
(2) The proofs (e.g. computer printouts, digital proofs) are not binding. It is expressly stated that variations in the colour in the final product can occur during to the various manufacturing processes.
(3) The client bears the costs for all light exposure in the case that the client or a third party is at fault for the exposure of the delivered or transferred data (i.e. the printing).
Editing of the data is carried out only under the express wish of the client and is shown separately in the invoice.
If the client provides no binding or otherwise proof (i.e. one which is not authorised by the contractor) he/she assumes the liability for the accuracy and the correctness of the printed product. This is also valid, if the details are incomplete or inaccurate due to underlying or technical issues with the order.
(4) The obligation for data protection resides exclusively with the client. The contractor is entitled to independently produce a copy.
(5) In the adaptation of data presented by the client the following points are valid:
The client must provide composite-data in PDF format (preferably PDF/X3 as per ISO 15930-3), TIFF/IT format or TIFF format. Included fonts in the document are embedded, and imported picture files and high-resolution data (OPI) should be included.
Application programs (e.g. Quark, Photoshop, InDesign etc.) are decided upon in advance meetings between client and contractor.
The contractor receives a proof (1:1) with the data from the client, as well as a list of all forms of data carriers, i.e. data submitted through telecommunication means (name, date, time) with the used text fonts (name of the font, producer, number), as well as the program used (name, producer, number). The profile of the source of the data and the profile of the print conditions used in the proof are made available (ICC-Profile).
In the case of a digital proof an Ugra/Fogra- media-key CMYK-TIFF must be printed with the proof. In the case of an analogue proof an index must be included, against which the full tone colouring, the tonal value increase of CMYK and other colours can be measured.
The client should identify errors and omissions in the proof by checking the following details carefully: the requested text, layout and changes to the pictures;
placeholders of the pictures and texts;
special effects like exemptions, distortions or special colours (exact definition through HKS or Pantone scale) and grid patterns;
formats with and without a trimming margin (minimum 3mm);
grid subtlety and the type of grid (e.g. frequency modulated) according to the provisions of each applicable part of the ISO 12647;
standards of the printing process.
In order to avoid a reduction in quality pictures must be supplied by the client as CMYK-files. The client must guarantee that only licensed fonts (only postscript fonts) have been used in the creation of the data.
In the event that the Data amounts to more than 25 MB, the extra cost for the time spent on proofing the data will be charged.
If the client does not deliver a proof or a list of data, they will be created by the contractor and included in the invoice.
(6) The contractor has the right to invoice for all costs relating to the proofs and storage of the supplied materials.
(7) Packaging materials and the excess refuse created during cutting, punching and the proofing processes become the property of the contractor.
XIII. ORDER DOCUMENTS
(1) The contractor is liable for manuscripts, drafts, proofs, printing plates, slides, films, data carriers and other documents according to paragraph XII (1) for four weeks after the conclusion of the order. Beyond that the contractor has no liability whatsoever for documents, which are demanded to be returned.
The contractor is also not obliged to store these documents or the reusable items beyond the above-mentioned period.
(2) The abovementioned objects are maintained until the date of dispatch, provided that they are made available by the client. In the event of damage to an object, the contractor is only liable if intent or gross negligence is involved.
(older point 6, from article XII)
According to the General Civil Code of Austria the contractor is liable as custodian of the abovementioned objects
(3) The client, if desired, can organise insurance for the above-mentioned objects.
XIV. STORAGE OF PRINTED MATERIAL ETC. AND ARCHIVING OF DATA
(1) The contractor is not obliged to store printed material, data, provisional products, printing devices (e.g. data susceptible to light exposure, films, fittings, plates, printing cylinders, die cutting forms, and paper, etc.) after the order is fulfilled, unless the client makes a particular agreement with the contractor and in this case the client would bear the costs, risk of storage.
(2) If temporary warehousing is expressly agreed upon with the contractor, in the event that damage occurs during this period due to intent or gross misconduct, the contractor therefore bears liability. The contractor is not obliged to have insurance covering stored products.
(3) The contractor shall bill the client for the holding of finished or semi-finished products according to the official rate for merchant shipping goods. The temporary waiver of the storage fee does not include the storage fee for goods, which the printer stores. Billing will be done in arrears after three months.
The stipulated obligation to retain the Composition or any further prepress samples expires if the client does not pay the relevant costs within four weeks.
(4) Products, in particular data and data-carriers, due to the contractor, are archived after the delivery of the end product to the client or to a third party only upon express agreement with the contractor and only those which are gainful beyond the time of delivery. In the event of no agreement the client must obtain independently insurance for the aforementioned items.
XV. PERIODICAL WORK
If the order comprises of regular and recurring print jobs and there has not been an agreed end point or cancellation period then the order can only be cancelled with a written notice of cancellation with three months notice before the end of an annual quarter.
XVI. RIGHT OF OWNERSHIP
The operating materials, intermediate products and objects used by the contractor to produce the products ordered (in particular: typesets, data-carriers, all forms of plates, lithographs, films, matrixes, stamps, stereos, galvanos and all other equipment used in the production process as well as the intermediate data) remain the property of the contractor and are not delivered to the client, if the client has afforded compensation for the work, respectively this will be presented separately in the invoice, therefore a handing over of use cannot ensue. This is also valid for the parts of the process and data, which are according to the contract manufactured by another company but the contractor is obliged to deliver.
XVII. COPYRIGHT LAW
(1) As long as the contractor has the full or partial copyright and intellectual property right on the delivered products, the client, upon delivery of the product, acquires only the non-exclusive right to distribute the products; in most cases the right of use, in particular the right of reproduction, remains the right of the contractor. The express right is the contractor’s, which is used by the contractor in the manufacture of reproduced materials (composition, data, data carriers, films, repros, etc.) and printed products (plots, printed sheets etc.). The contractor is not obliged to surrender the reproduced materials nor the purposes of usage.
(2) The contractor is not obliged to check if the client has the right to copy, edit, change the templates and also if the client has the right to use any of the templates as intended, the contractor is entitled to assume that the client has all necessary rights against third parties in order to enable the execution of the order. The client must expressly ensure that all of the necessary rights are at his/her disposal.
(3) If the client provides typefaces (i.e. application-software) in which the data provided by the client can be worked on by the contractor, the client must indicate that the contractor has the right to make changes where necessary. The contractor shall ensure the client that the application software will only be used when necessary changes need to be made to the order.
(4) The client is obliged to indemnify and hold harmless all claims raised by third persons about commercial breaches of copyright, related rights and other property rights or personal rights.
The contractor shall denote such claims and declare to the client the judicial recourses of the dispute. If the client does not acknowledge the declaration as a joint litigant the contractor has the right to acknowledge the claim and indemnify the client without regard for the legitimacy of the recognised claim.
XVIII. INTERMEDIARY LIABILITY
If an intermediary enlists an order in the name of a third party the intermediary is liable for the collection of the accounts due to the contractor and the intermediary is considered as debtor and guarantor. The contractor however has the right to demand the payment of open accounts from the intermediary only after unsuccessful reminders sent to the principal. The intermediary is obliged to impose the rights of the contractor on the principal client.
XIX. RESERVATION OF PROPERTY RIGHTS
(1) The delivered goods remain the property of the contractor until full payment of the contract price has been made.
(2) The following conditions are valid only for fully-qualified traders according to the code of commercial law (UGB):
The goods remain the property of the contractor until such point as the full payment of all accounts receivable according to the invoice are received. In the case of current accounts, the reserved ownership is valid as a safeguard for the contractor’s balance claims.
The client’s receivables, which arise from the resale of the goods subject to retention, are immediately assigned to the contractor at the time the orders are placed, in order to the safeguard the complete receivables owed to the contractor arising from the business relationship.
The client is only entitled and authorised to resell goods subject to retention based on a contract for services, work and/or materials, or a purchase or similar contract if the receivables of the resold goods are assigned to the contractor.
In the case of products, which are subject to copyright protection, the client is obliged to make the right of use (i.e. the patent rights) available to the contractor.
The client is not authorised to make the goods subject to retention available to any other parties. Upon request of the contractor the client is obliged to inform the contractor of the assignment of payment to the third purchaser.
Shall the value of the safeguard for the receivables exceed 20% the contractor is obliged, upon request of the client or the effected third party, to release the safeguard according to the client’s choice.
XX. RIGHT OF RETENTION
The contractor is entitled, according to the code of commercial law §369 UGB, to retain to the samples, slides, printing plates, films and repros, manuscripts, data carriers, raw materials and other such items until all accounts related the business relationship are fulfilled in full.
XXI. PRINTING OF NAMES OR BRANDS
The contractor is authorized to include the company name or logotype on the completed products without particular permission from the client.
XXII. APPLICABLE LAW, PLACE OF EXECUTION AND JURISDICTION
(1) The Austrian material Law is valid. The applicability of the UN sale of goods law is final. The language of the contract is English.
(2) The location for the shipment and payment is the location of the contractor.
(3) The jurisdiction for civil disputes initiated by the contractor about existence or non-existence of a contractual relationship, which is subject to these delivery and payment conditions, or for civil disputes about such contractual relationships the contractor may choose in the event of a litigation against the client that it shall take place under the jurisdiction of the contractor or the common jurisdiction of the client and contractor. In the event of litigation against the contractor it is exclusively the jurisdiction of the contractor.
XXIII. ORDER AGREEMENTS
All agreements including subsequent modifications and additions etc. must be in written form in order to be valid. Oral agreements, e.g. with sales persons, are not confirmed until they are in writing.