Terms and conditions of the advertising agency Benkler Reprotechnik GmbH

All agreements and offers shall be governed by these General Terms and Conditions of Business of Benkler Reprotechnik GmbH. They shall be deemed accepted upon the receipt of an offer, placement of an order or acceptance of a delivery. Any differing terms and conditions of the orderer not expressly accepted by Benkler Reprotechnik GmbH in writing shall be non-binding for Benkler Reprotechnik GmbH even if no express objection to them has been raised.

I. Scope of application/conclusion of contracts
Any orders shall exclusively be carried out based on the below terms and conditions. Any differing agreements shall require a written confirmation.

II. Prices
1. The prices indicated in the contractor's offer shall apply subject to the reservation that the order data on which the offer has been based remain unchanged, however no longer than for a period of 4 weeks from receipt of the offer by the customer. With orders involving deliveries to third parties, the orderer shall be deemed the customer unless any other express agreement has been made. The contractor's prices shall not include any VAT. The contractor's prices shall apply ex works. They shall not include packaging, freight charges, postage, insurance and other shipping costs.
2. Any subsequent changes caused by the customer including any resulting machine downtime shall be invoiced to the customer. Repeated print proofs requested by the customer due to minor deviations from the template shall also be deemed subsequent changes.
3. Sketches, drafts, press proofs, test prints, copy proofs, changes with respect to supplied/transferred data and similar preparatory works that have been requested by the customer shall be invoiced even if no order is placed. This shall also apply to data transmissions (e.g. by e-mail, FTP).

III. Payment
1. Payments (net price in EUR plus VAT in Germany) shall be made within 7 calendar days from the invoice date without deductions. The invoice shall be issued under the date of delivery, partial delivery or readiness for delivery (obligation to collect, delay in acceptance). The invoice amount must be paid in full. In case of bank charges the invoice recipient have to bear the costs. Bank charges at our expense will be demanded.
2. Bills of exchange shall only be accepted following a special agreement and as an undertaking to pay without any cash discount. Any discounts and expenses shall be borne by the customer. They shall immediately be paid by the customer. The contractor may not be held liable for the timely presentation, protestation, notification and retransfer of the bill of exchange unless intentional acts or gross negligence can be attributed to it or its vicarious agent.
3. If extraordinarily large quantities of paper or cardboard, special materials or advance performances are provided, an advance payment may be requested for such.
4. The customer may only offset undisputed or finally established claims. Customers that are registered merchants (Vollkaufmann) as defined by the German Commercial Code (HGB) shall not have any rights of retention and offset. The rights in accordance with § 320 of the German Civil Code (BGB) shall remain applicable, however, if and to the extent the contractor has failed to fulfil its obligations in accordance with section VII 3.
5. We shall reserve the right to involve a collection agency or a lawyer or to initiate summary proceedings to obtain an order for the collection of the debt.
6. Any unjustified discount deduction and unpaid reminder fees shall subsequently be invoiced by us.
7. In individual cases – in particular with amounts of up to EUR50.00 - we shall reserve the right to insist on cash payment.
8. Benkler Reprotechnik GmbH shall be entitled to issue partial invoices, the amounts of which shall be immediately payable, if the processing of orders exceeds a period of one month.

IV. Default of payment
1. If the settlement of a claim for payment is endangered due to a deterioration of the customer's financial situation that has arisen or become known after a contract has been made, the contractor may request advance payment and the immediate settlement of all open invoices including those that have not yet become due, retain any goods not yet delivered and discontinue any processing of pending orders. The contractor shall also have these rights if the customer fails to pay although a reminder has been given based on which a default is deemed given.
2. In the event of default of payment, default interests to the amount of 2 per cent above the applicable discount rate of Deutsche Bundesbank (German Central Bank) shall be paid. This shall not affect the assertion of any further damage caused by the default.

V. Delivery
1. If the goods are to be shipped, the risk passes to the customer upon the shipment being handed over to the person carrying out the transport.
2. Delivery dates shall only be valid if they are expressly confirmed by the contractor. If the contract is made in writing, the confirmation of the delivery shall also be made in writing.
3. If the contractor is in delay, a reasonable grace period shall be set. After such grace period has expired fruitlessly, the customer may rescind the contract. § 361 of BGB shall remain unaffected.
4. Interruptions of operations - both at the contractor's and at a supplier's company - such as strike, lockout and all other events of force majeure, shall only entitle to a termination of the contract if further waiting is unreasonable for the customer; otherwise, the agreed delivery period shall be prolonged by the duration of the delay. However, termination shall not be possible before the expiry of four weeks from the occurrence of the above interruption of operation. Any liability of the contractor shall be excluded in such events.
5. In commercial dealings, the contractor shall have a right of retention in accordance with § 369 of HGB with respect to printer's copies, stamp templates, manuscripts, raw materials and other items supplied by the customer until any and all outstanding claims from their business relationship have fully been settled.

VI. Retention of title
1. The delivered goods shall remain the property of the contractor until they have fully been paid.
2. The following provisions shall only apply in commercial dealings: The delivered goods shall remain the contractor's property until all of its claims towards the customer existing on the invoice date have fully been settled. The customer shall only be entitled to resell the goods in the proper course of business. The customer shall hereby assign its claims from the resale to the contractor. The contractor shall hereby accept such assignment. At the latest in the event of a delay, the customer shall be obliged to indicate the debtor of the assigned claim. If the total value of the collateral provided to the contractor exceeds its claim by more than 20%, the contractor shall be obliged upon the request of the customer or a third party affected by the over-collateralisation of the contractor to release excessive collateral at the contractor's discretion.
3. If goods delivered by the contractor that are still its property are processed or commingled, the contractor shall be deemed their manufacturer in accordance with § 950 of BGB and shall retain the title to the products at any point in time of their processing. If third parties are involved in such processing or commingling, the contractor's co-ownership shall be limited to the amount of the invoice value of the retained goods. The property thus acquired shall be subject to a retention of title.

VII. Complaints/warranties
1. The customer shall always check the delivered goods and the preparatory and intermediate products transmitted for proofreading for compliance with the contract. The risk of error shall pass to the customer upon the declaration that the products are ready for press/production unless an error arises during or cannot be detected before the production process following such declaration that the products are ready for press/production. This shall also apply to any other releases declared by the customer.
2. Complaints may only be raised within 48 hours from receipt of the goods. Any hidden defects that cannot be detected in relation with the immediate inspection shall be asserted within the legal warranty period.
3. In the event of justified complaints, the contractor shall be obliged at its discretion to either remedy the defect and/or make a substitute delivery; any other claims shall be excluded. In the event that such remediation or substitute delivery is delayed, omitted or fails, the customer may request the remuneration to be reduced or the contract to be rescinded.
4. Defects on a part of the supplied goods shall not entitle the customer to reject the entire delivery unless the partial delivery is of no interest for the customer.
5. With coloured reproductions in all production techniques, minor deviations from the original shall not constitute a reason for complaint. This shall also apply to comparisons between other templates (e.g. digital proofs) and the final product.
6. In the event of deviations with respect to the properties of the used material, the contractor may only be held liable up to the amount of the order value.
7. The contractor shall not be obliged to check any supplies (including data carriers, transmitted data) provided by the customer or a third party involved by it. This shall not apply to data with which it is obvious that they cannot be processed or are illegible. When transmitting data, the customer shall apply state-of-the-art protection programmes against computer viruses before starting the transmission. Responsibility for data protection shall exclusively lie with the customer. The contractor shall be entitled to make a copy.
8. Excessive or short deliveries of up to 10% of the ordered impression may not be rejected. The delivered quantity shall be invoiced. In relation with deliveries from special paper productions, this percentage shall increase to 20% for deliveries of less than 1,000kg and 15% with deliveries of less than 2,000kg.

VIII. Liability/insurance
1. The contractor shall only be liable for damage that is caused by intentional or grossly negligent acts or by a breach of its material obligations under the contract provided that the achievement of the purpose of the contract is at risk, warranted properties are not fulfilled or liability is mandatory under the German Product Liability Act. In the event of a culpable breach of material obligations under the contract, liability shall only extend to the typical, foreseeable damage.
2. The above provisions shall also apply to the liability of the contractor's vicarious agents.
3. If damage claims are raised, such shall be asserted within four months following the contractor's written refusal by means of an action. Any later assertion shall be excluded unless proceedings for the preservation of evidence have been initiated.
4. If the manuscripts, originals, printing plates, papers handed over to the supplier or any other provided items are to be insured against theft, fire, water or any other risk, the customer shall be responsible for taking out appropriate insurance policies. Benkler Reprotechnik GmbH may only be held liable for any damage on the above items of the customer in the event of gross negligence or intentional acts. 
5. Setting errors shall be corrected free of charge; however, any modifications, orderer's and author's corrections that cannot be attributed to the supplier since the manuscript is illegible or that become necessary since changes are made to the printer's copy shall be invoiced.
6. Copy proofs shall be checked for setting and other errors by the customer and returned to the supplier together with a confirmation that they are ready for press or released on a separate form, letter, e-mail or the like. Benkler Reprotechnik GmbH may not be held liable for any errors overlooked by the customer. No liability shall be assumed for changes requested by telephone. Upon the release of copy proofs by the customer, liability shall pass to the customer.

IX. Trade customs
In commercial dealings, the trade customs of the printing industry shall apply (e.g. no obligation to surrender intermediate products such as data, lithos or printing plates that are made for the production of the owed finial product) unless otherwise agreed upon.

X. Archiving
Products to which the customer is entitled, in particular data and data carriers, shall only be archived beyond the date of delivery of the final product to the customer or its vicarious agents if this has expressly been agreed upon and subject to an additional remuneration. Digital data and drafts created by us shall be considered our intellectual property. If the above items are to be insured, the customer shall be responsible for taking out according insurance policies unless otherwise agreed upon.

XI. Periodical works
Contracts on periodical works may be terminated for the end of each month by giving at least 3 months prior notice.

XII. Imprint
With the customer's consent, BenklerReprotechnik GmbH may indicate its name on products made under a contract in an appropriate way. Such consent may only be refused for important reasons.

XIII. Industrial property rights/copyright
The customer shall solely be responsible to ensure that the printer's copies may be reproduced. The copyright and the right of reproduction by any technique and the right of use for any purpose in any sketches, drafts, originals, films and the like shall remain with the supplier unless otherwise agreed upon. Reprints or reproductions – by any technique whatsoever - including of those deliveries that are not subject to copyright or any other protection under industrial property law shall not be permissible without the supplier's consent. The supplier may only be held liable for data, manuscripts and other items of the customer that have not been requested back by the customer within one week following completion of the order in the event of intentional acts and gross negligence. The customer shall take back the documents, data and working materials provided by it upon completion of the order.

XIV. Place of performance, place of jurisdiction, severability
1. If the customer is a merchant (Kaufmann) as defined by the German Commercial Code (HGB) or has not general place of jurisdiction in Germany, the place of performance and the place of jurisdiction for all disputes arising in relation with the contract, including any summary proceedings based on cheques, bills of exchange and documentary evidence, shall be the domicile of Benkler Reprotechnik GmbH: D-84032 Altdorf. The contract shall be governed by German law. The UN Sales Convention shall not apply.
2. If any provisions are or become ineffective, this shall not affect the effectiveness of the remaining provisions.

January 2009