General Business Terms and Conditions as of October 2000
I. General Terms:
The present General Business Terms and Conditions are applicable to any dispatch, delivery and service activity performed by the peka Verlags-GmbH and/or peka Memorial Cards LP and/or peka USA (vendor). Any variations or departures from these terms are valid only if prior agreement had been given in writing by the vendor.
II. Prices:
1. All the prices as stated are quoted ex works, with packing, carriage and the statutory value added tax – as now is or hereafter may be in force – not included. All prices are quoted in US dollars. Prices are subject to change without notice. Errors excepted.
III. Payments and Consequences of Default of Payment:
1. Payment is due immediately on receipt of invoice, without any deductions. Any discount and/or period of credit that may have been agreed upon will appear printed on the invoice and is valid only for this same consignment.
2. All payments, on principle, are to be made in effective value, i.e. the vendor must effectively receive the amount as charged on the invoice, without any deductions. All bank charges are to be borne by the customer.
3. Bills of exchange are not accepted, on principle.
4. Default of payment arises automatically – pursuant to the statutory regulations – 30 days after the due date of the invoice. For the duration of the default of payment the vendor has the right to charge the customer with interest to the amount of 1.5% per month (18% annual)
5. The vendor reserves the right to also dispatch the consignments per C.O.D. (cash on delivery) or C.I.A. (cash in advance).
IV. Delivery and Availability:
1. Dispatch and delivery will be effected at the customer’s risk and expense.
2. Any external transportation damage must be ascertained by the carrier.
3. The vendor will not guarantee for the punctual arrival of the goods at the customer’s place of destination, even if they had been dispatched as express goods or by express services. In this respect, any claims for damages as based on alleged non-performance resp. delayed delivery are excluded.
4. Delivery-dates are valid only if confirmed by the vendor in writing. If the vendor comes in default, he has to be allowed at first a reasonable extension of time. When that extension period had expired without remedy, the customer can cancel the contract.
5. In the case of operating troubles and business interruptions – both in the vendor’s and in one of the subcontractors’ enterprise -, such as strike or lock-out as well as all other cases of force majeure, the right for a termination of the contract is given only if the customer cannot reasonably be expected to accept an additional waiting period; otherwise the agreed delivery period is prolonged according to the duration of the delay. A liability of the vendor is excluded in these cases.
6. Unless otherwise instructed, the vendor will endeavour to replace an out-of-print representation with a similar substitute.
7. In the event that UPS has missed a “Guaranteed” delivery date (only Air shipment times are be guaranteed), the shipping amount paid by you will be refunded, with exception to weather delays. UPS will not refund charges due to weather delays or events beyond their control.
8. Someone must be present to receive expedited shipments.
V. Reservation of Title:
1. The vendor reserves title to the goods pending full settlement of all and any charges and outstanding debts owed by the customer.
2. The regulation hereinafter following is applicable only in the case of commercial transactions: The vendor reserves title to the delivered goods until each and every charge and trade account receivable owed by the customer to the vendor on the invoice date is fully paid and settled. The customer has the right to resale the goods only in the regular course of business. The customer hereby assigns to the vendor his charges arising from the resale; the vendor herewith accepts the assignment. In the case of default, at the latest, the customer is obligated to name the debtor of the assigned charge. If the value of the securities existing for the vendor exceeds his total charge by more than 20 percent, the vendor is obligated to release in so far securities at the request of the customer or of a third party who is adversely affected by the vendor’s excessive securities, at the vendor’s choice.
3. If goods delivered by the vendor and remaining in his ownership are subject to further treatment or processing, the vendor has to be regarded as the manufacturer, and he remains the owner of the products at any moment and stage of the working process. If a third party is involved in this treatment or processing, the vendor is limited to a joint owner share corresponding to the invoice value of the reserved goods. The property acquired in this way is considered as reserved property.
VI. Complaints:
1. The customer has to check the delivered goods as well as the preliminary and intermediate products sent to him for correction in any case for their conformity to the contract. With the ready-for-the-press approval the risk of possible errors and faults passes over to the customer insofar as those deficiencies are not a matter which came into being or could be detected only during the production process subsequent to the ready-for-the-press approval. The same applies to all the customer’s other clearing and release declarations.
2. The vendor must be given notice of any complaints without delay – at the latest, however, within eight days after receipt of the goods by the customer.
3. If the complaint is well founded, the vendor will arrange for a replacement free of charge.
4. As is true for all kinds of coloured reproductions, occasional slight deviations in colour must be accepted as not totally unavoidable.
5. Objects supplied by the customer (including data carriers, transmitted data) or by a third party engaged by him are not subjects to a compulsory check on the part of the vendor. This is not applicable to data which are obviously unfit for further processing or illegible. The protection of the data is solely the customer’s duty. The vendor is entitled to make a copy.
6. In the case of goods manufactured or processed for the customer surplus or short deliveries of up to 10 percent of the number of copies ordered are not deemed sufficient for lodging a complaint. On the invoice, the delivered quantity is charged. If the number of copies or quantity amounts to less than 1,000 pieces / sheets, this percentage increases to 20 percent.
7. The vendor reserves the right to introduce alterations in his line of products in the course of improvement measures without prior notice.
VII. Liability:
1. The vendor accepts liability only for damages caused by intentional or grossly negligent actions as well as in cases of breach of essential contractual obligations insofar as the purpose of the contract is jeopardized, and in cases of compulsory liability under the Product Liability Act. In the case of culpable breach of essential contractual obligations the liability is limited to damages which are typical for the contract and foreseeable.
2. The vendor does not guarantee that the delivered goods conform to the customer’s requirements or to the specifications resulting from the technical equipment used by the customer.
3. The same principles apply to the liability of the vendor’s performance and business agents.
4. Claims for damages are limited, on principle, to the value of the respective orders.
5. If claims for damages are to be put in, they must be filed as a legal action within four months after the written refusal of the vendor. Later assertions of the same are excluded unless an evidence securing procedure had been instituted.