GENERAL TERMS AND CONDITIONS
of KANDINSKY DEUTSCHLAND GMBH, Königsberger Str. 100, 40231 Düsseldorf in conjunction with the supply of goods and the provision of services to other companies
Status as at: 1 November 2008
1. General scope of applicability
1.1 The present General Terms and Conditions of Business (hereinafter referred to
“GTC“) shall be effective only in dealings with independent contractors, juristic
persons under public law and special funds under public law in the sense of §
310 German Civil Code (BGB).
1.2 The GTC shall be deemed effective for the entire business relationship prevailing
between the Client and KANDINSKY DEUTSCHLAND GMBH (hereinafter
referred to as: KANDINSKY).
1.3 The GTC shall also be deemed effective and agreed for all later business, even
where KANDINSKY does not expressly make reference to same again. This
shall apply, in particular, in the case of newly placed orders as part of existing
business, requests advised in respect of adjustment or amendment or in the
case of the extension of existing contractual arrangements.
1.4 Any such terms and conditions of business of the Client as shall be found to
be of contradictory or differing content shall be acknowledged only where
such acknowledgement has been explicitly confirmed in writing by KANDINSKY.
Otherwise, such terms and conditions of business of the Client as shall
be found to be of contradictory content shall be deemed not to have been
acknowledged by KANDINSKY. This shall likewise hold where KANDINSKY
unconditionally renders performance in favour of the Client irrespective of its
being aware of the existence of terms and conditions of business of the Client
that are of contradictory and/or differing content.
1.5 Any such individual agreements as shall have been established with the Client
to accommodate individual cases (including collateral agreements, additions
and amendments) shall, at all times, be deemed to take precedence over the
present GTC. Written agreement or our written confirmation shall dictate the
content of agreement thus established.
1.6 All such declarations and items of notification as are of relevance under law
and as shall be required to be effected by the Client for the attention of KANDINSKY
following conclusion of contract (e.g. setting of deadline, notification
of defect, declaration of withdrawal or diminution) shall require to have been
effected in writing to be deemed effective in so far as nothing to the contrary is
stipulated under the present GTC.
2. Quotations, conclusion of contract
2.1 All quotations originating from KANDINSKY and contained in brochures,
advertisements, Internet publications, etc., shall be subject to confirmation and,
as such, non-binding. Individually prepared, written quotations originating
from KANDINSKY shall - in so far as nothing to the contrary has been specified
in such quotation - be deemed valid for a period of duration 14 days
as of receipt of the quotation. The right to effect prior sale remains reserved.
Cooperation on the part of the Client in performance of contract on the part of
KANDINSKY shall be deemed to constitute acceptance of the quotation from
KANDINSKY by the Client.
2.2 Orders may only be placed in written or in text form. The order shall constitute
a binding offer. Acceptance of same by KANDINSKY shall not be deemed to
have been effected until a Confirmation of Order has issued within a period
of two weeks, said period being deemed to have commenced as of the date
of receipt of such order; alternatively, dispatch of the goods ordered to the
Client within the same period shall be deemed to imply acceptance of order.
Otherwise, the order shall be held to have been rejected. Confirmation of
receipt shall not be held to imply confirmation of order.
2.3 All rights are reserved in respect of correct and punctual performance towards
KANDINSKY by its own suppliers.
2.4 Amendment of order following conclusion of contract shall only be held
to be effective in so far as such amendment has been agreed in writing
between KANDINSKY and the Client and has been confirmed in written
form by KANDINSKY.
2.5 KANDINSKY shall be at liberty to refuse performance of service where, following
conclusion of contract, there are substantiated grounds for concern that
its entitlement to counter-performance is in jeopardy for reasons of deficient
ability to perform on the part of the Client, and, more specifically, for reasons
of a deterioration in the Client’s pecuniary circumstances. Where the Client is
found to be unwilling, following expiration of a reasonable deadline, to render
counter-performance concurrently and reciprocally in return for the services
provided by KANDINSKY, or, alternatively, to furnish security, KANDINSKY
shall be at liberty to withdraw from the contract.
2.6 Only those qualities and characteristics in respect of the goods to be delivered
as specified in the Confirmation of Order issued by KANDINSKY or within the
framework of detail provided by KANDINSKY in the form of a separate letter
of confirmation shall be deemed to be legally owing. Product descriptions,
details pertaining to weight and/or quantities, in particular, such as appear in
catalogues, brochures, on the Internet, in price-lists and in advertisements originating
from KANDINSKY are reference or approximate values only. They may
not be viewed as being of binding character from the perspective of qualities
to be delivered unless quality-specific detail has been explicitly confirmed in
writing by KANDINSKY.
3. Prices
3.1 In so far as the Confirmation of Order does not specify anything to the contrary,
KANDINSKY prices are to be understood “ex-works“ (Düsseldorf) and
strictly exclusive of Value Added Tax and packaging costs. The Value Added
Tax shall be chargeable at the statutory rate applicable per date of invoice
and shall be shown separately in the invoice.
3.2 All such quotations and detail pertaining to price as shall appear outside of the
Confirmation of Order, in particular those found in catalogues, brochures, on
the Internet, in price-lists and in advertisements originating from KANDINSKY,
are of non-binding character and may be adjusted by KANDINSKY at any time.
3.3 KANDINSKY shall be at liberty, where contracts are of agreed term in excess
of four months, to realign its prices to increases that have occurred on the
basis of agreements with suppliers, agreements on tariffs, exchange-rate adjustments
or increases in the cost of materials. Where such increase is found to
be in excess of 5 % of the agreed purchase price, the Client shall be at liberty
to withdraw from the contract subject to the proviso of § 313 Sub-section 3
German Civil Code (BGB). Claims of the Client for compensation in respect of
such occurrence shall not be entertained.
4. Scope and implementation of order, printing motifs and printing technique
4.1 All of the artwork (graphics, logos, texts) required in conjunction with the
printing motifs requested by the Client must be sent in digital form by email to
the address “daten@kandinsky.de“. The formats that are accepted by KANDINSKY
are posted on the KANDINSKY Internet website (www.kandinsky.de).
Incoming data shall be checked by KANDINSKY for its suitability for printing
purposes. Where printing motifs are found to be unsuitable for reasons for
which KANDINSKY cannot be held accountable, KANDINSKY shall be relieved
of all obligation to render performance until such time as suitable printing
motifs are forthcoming.
4.2 Any data forwarded shall not be deemed to have been received until receipt
has been explicitly confirmed by KANDINSKY in writing or in text form. This
shall not apply where KANDINSKY may be held accountable for non-receipt
or confirmation of receipt has been withheld unjustifiably.
4.3 KANDINSKY reserves the right to supply amounts less than or in excess of
those ordered in so far as such shortfall or excess as is directly attributable to
the production process may be deemed reasonable from the perspective of the
Client. An amount of difference of up to 10% shall be held to be reasonable.
Where there is a mixture of articles and sizes, an amount of difference of
up to 15% per individual article and/or size shall be held to be reasonable,
no more, however, than 10% of the entire quantity ordered. The Client shall
retain the right to furnish evidence to the effect that, in given individual cases,
a lesser amount of difference is to be regarded as reasonable. In the event
of excess delivery, payment shall be due and owing for the amount actually
delivered and for no more than the amount that is held to be reasonable. In
the event of delivery of an amount less than that ordered, payment shall be
due and owing by the Client only for the amount actually delivered.
4.4 Depending on the given requirements, KANDINSKY shall avail itself of any of
a variety of printing techniques (for example, screen-printing, transfer printing
or sublimation printing). Outline drawings (with uniformly coloured areas)
shall be produced applying screen-printing (standard method of printing). In
the case of areas featuring a variety of shades of colour (half tones), use shall
be made of alternative processes. This may cause screens to become visible
(when using the transfer-printing method) or slight blurring may result (when
using the sublimation-printing method).
4.5.1 Long-term and intensive use of an item to which print has been applied may
cause the print to fade or to come off.
4.6 For the purpose of defining colours, KANDINSKY avails itself exclusively of
the “coated“ range from the Pantone Colour Matching System. The Client shall
undertake to express its requests in respect of colour in terms consistent with
the Pantone Colour Matching System. The material to which the print is to be
applied may cause marginal deviation (+/- 1 shade) to arise. Such instances
of deviation shall not be construed as such defect as would trigger warranty.
4.7 The dyeing of materials may likewise cause marginal deviation (+/- 2 shades)
to arise. Such instances of deviation shall likewise not be construed as such
defect as would trigger warranty.
4.8 Where textiles are required to be produced, slight divergence (+/- 1-2 cm)
from those measurements specified per pattern or production sample may
result. Such instances of divergence shall likewise not be construed as such
defect as would trigger warranty.
5. Delivery and performance deadlines
5.1 For delivery deadlines and periods to be deemed binding, they must have
been established in explicit terms and have been agreed as binding. Where
delivery deadlines have been established in non-binding or approximate terms
(“about”, “approximately”, “if possible”, “probably”, etc.), KANDINSKY shall
undertake to make every effort to adhere to same.
5.2 Where KANDINSKY is not supplied with goods or services by its own
suppliers, or the supply of such goods or services is incorrect or not within the
agreed time schedule, for reasons for which KANDINSKY may not be held
accountable, or should Acts of God occur, KANDINSKY shall undertake to inform
the Client without delay of such development. KANDINSKY shall be at liberty
to defer delivery by the duration of such non-availability, or alternatively,
to withdraw entirely from the contract because of the portion unperformed in
so far as KANDINSKY has fulfilled its obligation to inform as addressed heretofore.
In the event of withdrawal from contract, KANDINSKY shall undertake
to compensate the Client without delay for all counter-performance rendered.
5.3 In so far as nothing to the contrary has been expressly agreed, despatch shall
be on the basis ‘uninsured, for risk and account of the Client’. KANDINSKY
shall reserve the right to select the mode of despatch, route of transportation
and means of transportation. Should the Client so request expressly, transport
insurance can be arranged for the delivery process, whereby all costs thereby
incurred shall be for the account of and borne by the Client. The quantities,
measurements and weights as established by KANDINSKY in respect of the
goods ordered shall prevail.
5.4 Adherence to the obligation to deliver on the part of KANDINSKY shall be
strictly subject to proper and punctual performance of its obligations on the
part of the Client. All rights in respect of the plea of non-performance shall
remain reserved.
5.5 KANDINSKY shall be at liberty to make available to the Client by electronic
means a sample in the sense of a digital “fine drawing” of the goods ordered.
Where separate agreement to such effect has been established, KANDINSKY
shall undertake at additional charge (coupled with an extension of the delivery
period) to also make available a physical sample of production. In any case,
KANDINSKY recommends emphatically that a physical sample of production
be requested in conjunction with goods being manufactured for the first time.
The samples mentioned heretofore shall be prepared on the basis of the
data and printing motifs made available by the Client. Production shall not
commence until such time as the sample has been examined and approved
by the Client, which procedure should be conducted immediately subsequent
to receipt, and ideally within a period of 24 hours. Approved physical production
samples shall be taken to be equivalent to the quality agreed. Where
same is found to differ from that specified in the Confirmation of Order, said
Confirmation of Order shall be deemed to have been amended.
5.6 Delivery periods and deadlines shall be deemed effective as of the point-intime
of approval by the Client as provided for under No. 5.5; where such
approval is held not to be necessary, effectiveness shall accrue no earlier than
as of point-in-time of receipt in perfect condition of the data and printing motifs
and consistent with the mode of procedure stipulated by KANDINSKY. Onus
attaches to the Client, therefore, to cooperate, in that the data required shall
be made available in a condition and manner consistent with that prescribed
by KANDINSKY. The specific guidelines attaching hereto may be taken from
the KANDINSKY homepage on the Internet and may be requested in advance
from KANDINSKY. The data made available shall not be deemed to be perfect
until such time as same has been subjected to examination by KANDINSKY
within a reasonable period, thereby giving due consideration to potential
product-specific restrictions and peculiarities, and confirmation of suitability
has been forthcoming in written form or in an alternative text form. This shall
not hold where KANDINSKY may be held accountable for the unsuitability of
the data or confirmation of suitability is withheld unjustifiably.
5.7 It shall be deemed a requirement that all forms of orders or instructions issuing
from the Client be unambiguous in terms of their content. Orders that have
been articulated in an unclear manner may lead to queries, which, in turn,
may result in delays.
5.8 Where the Client fails to accept delivery of goods or is found to be otherwise
in breach of its obligation to cooperate, KANDINSKY shall be entitled to
compensation for any loss thereby incurred and to refund of any additional
expenditure accruing (e.g. storage costs). All rights shall remain reserved in
respect of further claims or entitlements.
5.9 The risk of loss or deterioration by accident in respect of the goods ordered
shall pass to the Client as of the point-in-time at which default in respect of
acceptance or culpable delay by obligor is found to have become effective on
the part of the Client.
5.10 Part-deliveries and part-performance are deemed to be admissible in economically
reasonable measure.
6. Payment, contractual exclusion of set-off, rights of retention, assignment
6.1 Payments shall be deemed due and owing immediately and shall be effected by
bank transfer or direct debit without deduction within 10 days as of delivery.
6.2 KANDINSKY shall reserve the right to demand payment on a cash-on-delivery
basis or payment-in-advance basis in amount equivalent either to the entire
purchase price or a portion thereof. The invoice issued by KANDINSKY may
be enclosed with the Confirmation of Order.
6.3 Payment shall not be deemed to have been effected until the date upon which the
funds attaching to the amount of invoice are readily available to KANDINSKY.
6.4 Where the Client is found to be in default of payment, KANDINSKY shall be
entitled to demand interest on arrears at a rate equivalent to 8% p.a. above
the base rate of interest prevailing at any given time. Where KANDINSKY can
furnish evidence of loss of greater extent that is attributable to said default, it
shall be at liberty to assert claim in respect of same.
6.5 Where the Client is found to be in default for a period in excess of 14 days,
KANDINSKY shall be at liberty to withhold all such performance as requires to be
rendered in favour of the Client and not to resume same until all overdue amounts
inclusive of interest owing thereon have been paid to KANDINSKY. This shall not
hold where instalment payment of the amount of invoice has been agreed.
6.6 The Client shall only be entitled to offset its counterclaims against claims of
KANDINSKY or to refuse to render performance or withhold same where such
counterclaims have been acknowledged by KANDINSKY and are undisputed
and non-appealable under law.
6.7 The Client shall only be at liberty to assign claims in its favour against KANDINSKY
to third parties where KANDINSKY has approved such assignment in
advance and in writing.
6.8 Costs accruing to KANDINSKY in conjunction with payments made from
abroad shall be chargeable to the Client.
7. Warranty
7.1 It shall be deemed a requirement, in the event of the assertion of claims on
the part of the Client on grounds of defect, that the Client has, in appropriate
measure, satisfied all obligations in respect of examination and notification
of defect as provided for under § 377 Uniform Commercial Code (HGB).
Notification of defect shall be effected without any delay and no later than
within 5 days as of receipt of the goods or, alternatively, in so far as the defect
could not be detected despite proper and correct examination procedure,
within a period of 5 days as of detection at KANDINSKY. Discrepancies in
respect of quantity and obvious defects shall be required to be advised without
any delay, no later, however, than within 48 hours of receipt of the goods.
The point-in-time of receipt of the pertinent declaration at KANDINSKY shall
determine whether this deadline has been observed. The special statutory
provisions attaching to the sale of goods to the ultimate consumer (supplier
recourse as provided for under §§ 478, 479 German Civil Code (BGB)) shall,
in any case, remain thereby unaffected.
7.2 The foregoing obligation shall likewise hold for instances of over and undersupply.
Where notification of complaint is not effected on time, over or undersupply
shall be deemed to have been approved by the Client.
7.3 No complaints in respect of visible defects shall be entertained once cutting-tosize
or any other form of processing of the goods supplied has commenced.
7.4 No complaints shall be entertained in respect of minor differences in quality,
colour, width, weight, finish or design or such as may be attributable to
technical aspects of processing. This shall likewise hold for such differences
as are held to be normal in the trade unless KANDINSKY has furnished a
written guarantee of delivery true-to-sample. Reference is herewith made, more
specifically, to Nos. 4.4 - 4.7. The same shall hold for comparisons between
other artwork (e.g. digital proofs, final proofs) and the ultimate product.
7.5 No liability shall be assumed for such defects as do not, or only in insignificant
measure, detract from the value or suitability for use of the product(s).
7.6 KANDINSKY shall be deemed liable only in measure equivalent to the monetary
value of a given order for differences in quality of the material used.
7.7 Where the product purchased is found to be defective, the Client shall, at its
own discretion, be entitled to supplementary performance in the form of correction
of defect or delivery of a new and non-defective article. KANDINSKY
shall be at liberty to reject the form of supplementary performance selected by
the Client in so far as such selection may only be accommodated at disproportionately
high expense. Any entitlement of the Client shall, in such instance,
then by restricted to the other form of supplementary performance remaining.
7.8 KANDINSKY shall be entitled to demand that any supplementary performance
established as being justified be made dependent upon payment by the Client
of any monies due and owing. The Client shall, however, be at liberty to withhold
a portion of the purchase price which is held to be commensurate with
the level of defect prevailing.
7.9 Where attempts, however, at correction of fault or replacement delivery fail,
the Client shall be deemed entitled to a reduction in the amount payable or to
withdraw from the contract in so far as the defect may be held to be significant.
Claims in respect of compensation and refund of expenses incurred shall
remain thereby unaffected,
7.10 Where notice of defect on the part of the Client is found to be unwarranted, said
Party shall be obligated to compensate KANDINSKY for all verifiable expenditure
incurred in conjunction with the supposed need for correction of defect.
7.11 Should the Client, following an abortive attempt to effect supplementary performance,
opt to withdraw from the contract on grounds of defective supply, there
shall be no entitlement to compensation on grounds of said defectiveness.
7.12 No claims for defects shall be entertained in respect of second-hand goods.
7.13 Instances of liability for defects shall be dealt with directly with KANDINSKY.
Negotiation with such independent representatives as are not directly employed
with KANDINSKY shall not be deemed to constitute negotiation within the
meaning of § 203 I German Civil Code (BGB).
8. Other liability
8.1 In so far as nothing to the contrary has been stipulated under the present GTC
including the provisions contained hereinafter, KANDINSKY shall be liable for
any breach of contractual or non-contractual obligation as provided for under
the pertinent statutory regulations.
8.2 KANDINSKY shall be liable - irrespective of legal consideration - for payment of
compensation where wilful intent and gross negligence are found to have prevailed.
In the event of occurrence of simple negligence, KANDINSKY shall be liable only
– for loss deriving from impairment of life, body or health
– for loss deriving from breach of a contractual obligation of significant
content (such obligation whose fulfilment would be deemed requisite in the
first place to facilitate proper and correct implementation of the contract
and on observance of which the Contractual Partner will and may depend at
any time); in this case, however, the liability attaching to KANDINSKY shall
be confined to furnishing compensation for such loss as may be held to be
foreseeable and its accrual typical.
8.3 The limitation of liability per No. 8.2 shall not apply in so far as KANDINSKY
is found to have maliciously concealed a defect or to have assumed a guarantee
in respect of the structural quality of the product. The same shall apply in
respect of claims and entitlements in favour of the Client as provided under the
Product Liability Act (Produkthaftungsgesetz).
8.4 The Client shall only be at liberty to withdraw from contract or serve notice of
termination of same on grounds of breach of obligation that does not consist in
defective supply where KANDINSKY may be held accountable for said breach
of obligation. The Client shall not, under any circumstances, (in particular such
as are provided for under §§ 651, 649 German Civil Code (BGB)), enjoy free
right of termination of contract. For the rest, statutory requirements and legal
consequences shall be held to prevail.
8.5 In the event of an occurrence/occurrences of delay in delivery for which KANDINSKY
may be held accountable (in respect of delivery, cf. No. 5), KANDINSKY
shall be liable as provided for under statutory regulations prevailing,
whereby compensation for delay shall only be payable where KANDINSKY, its
legal representative or vicarious agent may be verifiably held accountable for
wilful intent or gross negligence. Compensation for delay shall be confined to
such loss as may be held to be foreseeable and its accrual typical.
9. Statute of limitation
9.1 The mutual claims and entitlements attaching to the Contractual Parties shall be
deemed statute-barred as provided for under statutory regulations prevailing in
so far as nothing to the contrary has been determined hereinafter.
9.2 Notwithstanding § 438 Sub-section 1 No. 3 German Civil Code (BGB)), the
period of limitation for entitlements pertaining to material and legal defect shall
be generally taken to be one year as of delivery. In so far as acceptance has
been agreed, the period of limitation shall be deemed to have commenced
upon execution of acceptance.
9.3 Special statutory provisions prevailing in respect of the material claims for
conversion in favour of third parties (§ 438 Sub-section 1 No. 1 German Civil
Code (BGB)), claims in conjunction with supplier recourse (§ 479 German Civil
Code (BGB)) and the claims for compensation as specified under Nos. 8.2
and 8.3 shall remain thereby unaffected. These cases shall be governed strictly
by those statutory regulations prevailing in respect of periods of limitation.
9.4 In so far as KANDINSKY is liable to the Client for compensation on grounds
or as a consequence of defective supply as provided for under No. 8, the
statutory periods of limitation deriving from the law of purchase (§ 438
German Civil Code (BGB)) shall also hold for concurrent, non-contractual
claims for compensation where application of the regular statutory period of
limitation (§§ 195, 199 German Civil Code (BGB)) does not result in a period
of limitation of shorter duration in individual cases. The periods of limitation as
provided under the Product Liability Act (Produkthaftungsgesetz) shall, in any
case, remain thereby unaffected.
10. Retention of title
10.1 KANDINSKY shall retain title to all of the goods it has supplied until such time
as all amounts receivable on the basis of the business relationship have been
paid. This shall also apply where the purchase price has been paid for certain
deliveries of goods to which specific reference has been made by the Client.
Where business is conducted on a current account basis, the reservation of
title in respect of those goods subject to said reservation, i.e. the reserved
goods, shall be held to serve as security for the balance of sums outstanding in
favour of KANDINSKY.
10.2 Pledging of the object of purchase or transfer of its ownership by way of
security prior to settlement in full of the purchase price attaching thereto shall
be deemed inadmissible.
10.3 In the event of conduct on the part of the Client which may be construed as
constituting breach of contract, in particular, in the event of non-payment of the
purchase price due and owing, KANDINSKY shall be at liberty to withdraw
from the contract in accordance with regulations prevailing under law or/
and to demand surrender of the goods on the basis of retention of title thereto.
Such demand for surrender shall not be held to imply a declaration of withdrawal
from contract. On the contrary, KANDINSKY shall be entitled to only
demand surrender of the goods and to reserve its right to said withdrawal.
Where the Client fails to effect payment of the purchase price due and owing,
KANDINSKY may only avail itself of these entitlements where it has previously
agreed a deadline with the Client which the latter has failed to adhere to or
determination of deadline is found to be legally superfluous.
10.4 Where the reserved goods are combined with other such goods as do not
belong to KANDINSKY, KANDINSKY shall be entitled to co-ownership of the
new product in a measure equivalent to the ratio prevailing between the value
of the item of purchase and the other product thereby combined at the point in
time of combination. Where the object of the Client may be held to constitute
the primary element, or where the Client acquires sole title to the new product,
the Contractual Parties herewith establish consensus to the effect that the Client
shall assign co-ownership of the new product in a measure commensurate with
the value of invoice attaching to the reserved goods, providing safekeeping for
same on a free-of-charge basis.
10.5 Disposal by way of sale of the reserved goods shall be deemed admissible
only through the channel of normal business activity. The Client, however,
herewith assigns to KANDINSKY all such amounts receivable from its
customers or third parties as shall accrue on the basis of such disposal. The
Client shall remain authorised to collect such amount receivable following the
foregoing assignment. Entitlement on the part of KANDINSKY to itself collect
such amount receivable shall remain thereby unaffected. KANDINSKY shall,
however, undertake to refrain from engaging in collection of the amount receivable
for as long as the Client is seen to honour its payment obligations from
the proceeds collected through disposal, not to fall into arrears of payment
and, above all, no application for the initiation of insolvency proceedings
has been filed or payment of amounts owing has been discontinued. Should
the Client fail to satisfy the foregoing requirements, KANDINSKY shall be at
liberty to demand that the Client furnish KANDINSKY with the details of the
amounts receivable as assigned heretofore, the debtors attaching thereto, all
of the information required for the collection procedure, and further, that the
Client surrender the appurtenant documentation and advise the debtor(s) (third
part/parties) as to execution of the assignment. Where the reserved goods are
disposed of by way of sale together with other goods, namely irrespective of
without or following combination, the assignment-in-advance as agreed heretofore
shall be taken to hold only in measure equivalent to the value of invoice of
those reserved goods disposed of together with the other goods.
10.6 The Client shall undertake to notify KANDINSKY without delay of seizure
through third parties of the goods supplied or of such amounts receivable from
disposal as have been assigned to KANDINSKY, whereby details of all such
circumstances as shall be held to be of significance for the protection of the
rights of KANDINSKY shall likewise be advised. All cost incurred through intervention
with a view to protecting the rights of KANDINSKY shall be assumed
by the Client. The Client shall undertake, at its own expense and acting strictly
in line with instructions received, to provide KANDINSKY with the requisite
support in the intervention procedure.
10.7 KANDINSKY shall be at liberty to demand information from the Client as to
the whereabouts of the goods supplied.
10.8 KANDINSKY shall undertake, at the request of the Client, to release items of
security furnished in so far as the total realisable value of said securities is
found to exceed the amounts receivable by KANDINSKY and requiring to be
secured by more than 10 %; selection of those items of security to be released
shall be at the discretion of KANDINSKY.
10.9 The Client shall undertake to provide safekeeping of the reserved goods for
KANDINSKY on a free-of-charge basis. It shall undertake to ensure insurance
of standard measure against the normal risks such as, for example, fire, theft
and water. The Client herewith assigns to KANDINSKY, in a measure equivalent
to the invoice value of the goods, all such entitlement to compensation as
may accrue in its favour from loss of the nature specified heretofore and be
payable by insurance companies or other parties obligated to furnish compensation.
KANDINSKY herewith accepts said assignment.
11. Protective rights, indemnity
11.1 The Client shall undertake, immediately upon placement of order, to grant
KANDINSKY all entitlements in respect of use of any copyright, trade or identification
marks and any other such rights as may attach to the printing motifs
for the purpose of performing the contract.
11.2 The Client shall undertake, prior to placement of contract, to clarify in which
country the items constituting the subject matter of the assignment are to be
produced and which countries are to be affected by delivery of said items, the
purpose being to ensure that the requisite rights are available for the manufacture
and supply of such items in these countries.
11.3 The Client herewith guarantees that it is in possession of all of the requisite
rights, and more specifically, of copyright, trade and identification marks and
any other such rights as may be affected in conjunction with the manufacture
of the requested printing motifs and/or the supply and/or the import of the
printed goods and their use by the Client itself or by third parties. The Client
herewith agrees upon placement of contract to indemnify KANDINSKY at the
latter’s first request against all such claims as may be asserted by third parties
on grounds of breach of protective rights. This obligation to indemnify shall
encompass all such expenditure as may, of necessity, accrue to KANDINSKY
from or in conjunction with assertion of claim on the part of a third party. (e.g.
fees of own solicitor(s) and that/those of the opposing party and any other
costs incurred through the engagement of legal counsel as well as amounts
of compensation). KANDINSKY shall not be entitled to establish agreement
of whichever content with such third party without the approval of the Client,
and more specifically to reach a settlement. The Client shall undertake, in so
far as KANDINSKY encounters assertion of claim on the part of third parties,
to make available in correct and complete form all of the information that
shall be required in order to examine the claims and prepare a defence. The
Client shall undertake to defend KANDINSKY against all assertion of claim,
said defence to be provided at the latter’s first request, in line with the latter’s
instructions and at the expense of the Client, and further, to assist KANDINSKY
in the assertion of such defence.
11.4 The obligation to indemnify shall not be deemed subject to the requirement
that the claims being asserted by the third party are undisputed or non-appealable
on the basis of a judicial ruling, but shall, on the contrary, hold as of the
point-in-time at which the third party approaches KANDINSKY with its own/
or allegedly its own claims having substantiated same on the basis of prima
facie evidence. Should such third party put forward its entitlement under law in
a plausible and substantiated manner, KANDINSKY shall be entitled to make
available to said party the customer data of the Client to enable the third party
to pursue its rights through direct dealings with the Client. KANDINSKY shall
undertake to notify the Client of the impending disclosure of customer detail
before effectively doing so.
11.5 The period of limitation shall be taken to be ten years, calculated as of conclusion
of contract.
11.6 Should concern as to the fact that the printing motifs requested may constitute
a breach of third-party rights be warranted, KANDINSKY shall be at liberty to
withdraw from the contract.
12. Documentation
KANDINSKY shall retain right of ownership, copyright and other rights prevailing
in respect of all such illustrations, drawings, advertising and other items
of print, calculations and other documentation as KANDINSKY shall have
made available to the Client. The Client shall only be at liberty to avail itself
of same within the framework of the contract in question. The items specified
under Sentence 1 may only be passed on to third parties where KANDINSKY
has expressly approved same in writing and in advance. The aforementioned
documentation shall be committed to careful safekeeping and shall - at the
discretion of KANDINSKY - be surrendered or destroyed at first request. The
Client shall have no entitlement to exercise of a right of retention.
13. Packaging
A return of sales packaging which does not become the responsibility of the
ultimate consumer within the meaning of the packaging ordinance may only
take place at the business domicile of KANDINSKY, and such return shall be
for the account of the Client.
14. Approval in respect of advertisement incorporating reference projects/product samples
The Contractual Parties herewith mutually approve the incorporation of a given
concrete contract into advertising strategy and the naming of such contract as
a reference-project. The Parties also herewith mutually approve the use hereby
of their respective names, identification or trademarks on a free-of-charge
basis for advertising purposes, namely in conjunction with the naming of one
or other party for reference purposes and/or in conjunction with referenceprojects
and/or reference-products (in particular, in printed form, on the
Internet, in catalogues, in advertisements, at trade fairs). KANDINSKY shall be
at liberty to avail itself of and present in illustrated form, products manufactured
for the Client for the purpose of advertising its services in its dealings with
other customers.
The Parties shall, in individual cases and by way of written notification, be at
liberty to restrict future availment of the aforementioned rights and entitlements,
whereby it shall be deemed a requirement that a transition period of 8 weeks
be granted.
15. Place of performance, provisions in respect of language, jurisdictional venue, applicable law
15.1 The place of performance for both parties shall be taken to be Düsseldorf.
15.2 The contractual language is German. In the event of conflict or dispute, the
German version of the present GTC shall take precedence over versions of the
present GTC drafted in other languages.
15.3 The sole jurisdictional venue - also from an international perspective - for all
legal disputes arising, either directly or indirectly, from the contractual relationship
or pertaining to the coming into being and effectiveness of same shall be
taken to be the legal domicile of KANDINSKY in Düsseldorf; at the discretion
of KANDINSKY, it may also be taken to be the legal domicile of the Client.
15.4 The contractual relationship shall be governed exclusively by the law of the
Federal Republic of Germany. Under no circumstances shall the United Nations
Convention on Contracts for the International Sale of Goods (CISG) be deemed
applicable. Requirements and implications attaching to the right of retention
under No. 10 shall be subject to the law prevailing at the respective place
of storage of the goods in question in so far as the choice of German law as
constituting the law applicable is found to be inadmissible or ineffective.
16. Data protection
KANDINSKY herewith draws attention to the fact that - in so far as it is held
to be necessary from the perspective of the transaction of business and
admissible under the Data Protection Act of the Federal Republic of Germany
(Bundesdatenschutzgesetz) - the data pertaining to the Client shall be committed
to EDP-storage and processing.
17. Escape clause
In so far as one or more of the foregoing clauses are found to be ineffective,
or should any such clause(s) become ineffective over time, the effectiveness
of the remaining clauses shall not be thereby affected. The pertinent statutory
provisions shall serve to take the place of loopholes or ineffective clauses.
