AGB

General Terms and Conditions of Delivery and Payment Sommer GmbH

1 Scope of application

1. 1.1 These Terms and Conditions of Sale apply to entrepreneurs, legal entities under public law and special funds under public law. Our deliveries and services are provided exclusively on the basis of the following terms and conditions. Terms and conditions of the partner which are not expressly recognised by us shall not apply.
2. 1.2 These Terms and Conditions of Delivery of the Supplier shall apply to all contracts concluded between the Customer and the Supplier for the sale, manufacture and processing of goods. They shall also apply to all future business relations, even if they are not expressly agreed.

2 General provisions

1. 2.1 Orders only become binding with our order confirmation.
2. 2.2 If we determine within an inspection period of 4 weeks after conclusion of the contract that we are unable to manufacture or process the ordered goods for technical reasons, we may withdraw from the contract. In this case, the customer shall not be entitled to any claim for damages against us. We shall inform the customer immediately of the technical obstacles and exercise our right of cancellation without delay; in the event of cancellation, we shall reimburse the customer immediately for any corresponding consideration already received. Claims for damages by the customer are excluded or limited in accordance with point 13 of these terms of delivery.
3. 2.3 The information and illustrations contained in brochures and catalogues are approximate values customary in the industry, unless they have been expressly designated by us as binding.
4. 2.4 All offers not expressly designated as binding are subject to change.
5. 2.5 Insofar as individual provisions of these General Terms and Conditions of Delivery are or should become legally invalid for any reason whatsoever, the validity of the remaining provisions shall not be affected.
6. 2.6 Individual agreements made with us in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.

3. time and call-off contracts

1. 3.1 Open-ended contracts can be cancelled with a notice period of 6 months.
2. 3.2 Fixed-term contracts within the meaning of this contract are contracts that are concluded for a period of more than 12 months.
3. 3.3 If a binding order quantity has not been agreed, the parties agree that we shall base our calculation on the non-binding order quantity (target quantity) expected by the partner for a specific period. Goods ordered on call shall be accepted within 12 months of order confirmation.
4. 3.4 In the case of call-off delivery contracts, unless otherwise agreed, we must be notified of binding quantities by call-off at least 2 months before the delivery date. Additional costs caused by a delayed call-off or subsequent changes to the call-off in terms of time or quantity by our partner shall be borne by the partner; our calculation shall be decisive in this respect.

4 Confidentiality

1. 4.1 Each contractual partner shall use all documents (including samples, models and data) and knowledge which it receives from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own corresponding documents and knowledge. This obligation shall commence from the first receipt of the documents or knowledge and shall remain unaffected by the termination of the business relationship.
2. 4.2 The obligation shall not apply to documents and knowledge which are generally known or which were already known to the contractual partner upon receipt without the contractual partner being obliged to maintain secrecy, or which are subsequently transmitted by a third party authorised to pass them on, or which are developed by the receiving contractual partner without using documents or knowledge of the other contractual partner which are to be kept secret.

5 Drawings and descriptions

1. 5.1 If a contractual partner provides the other contractual partner with drawings or technical documents concerning the goods to be delivered or their manufacture, these shall remain the property of the submitting contractual partner.
2. 5.2 If third party industrial property rights are infringed during the manufacture of the goods according to drawings, samples or other information provided by the customer, the customer shall indemnify the supplier against all claims.
3. 5.3 Any change to the text correction requires the production of new graphics and films.

6 Samples and means of production

1. 6.1 Unless otherwise agreed, the production costs for samples and/or means of production (tools, moulds, templates, etc.) shall be invoiced separately from the goods to be delivered. This also applies to samples and/or means of production that have to be replaced due to wear and tear.
2. 6.2 The costs for maintenance and proper storage as well as the risk of damage to or destruction of the production equipment shall be borne by us.
3. 6.3 If the partner suspends or terminates the co-operation during the production period of the samples or production equipment, all production costs incurred up to that point shall be borne by the partner.
4. 6.4 Proofs made by the supplier as well as production equipment such as films, printing plates, tools and moulds shall remain the property of the supplier and shall not be handed over, even if the production costs are partially invoiced to the customer.
5. 6.5 We shall store the means of production free of charge for three years after the last delivery to our partner. Thereafter, we shall request our partner in writing to comment on the further utilisation within 6 weeks. Our duty of safekeeping shall end if no statement is made within these 6 weeks or no new order is placed.

7 Prices

1. 7.1 Our prices are quoted in euros excluding VAT, packaging, freight, postage and insurance.

8 Terms of payment

1. 8.1 All invoices are due for payment within 30 days without deduction from the date of invoice.
2. 8.2 If we have indisputably delivered partially faulty goods, our partner shall nevertheless be obliged to make payment for the faultless part, unless the partial delivery is of no interest to him. Otherwise, the partner may only offset counterclaims that have been recognised by declaratory judgement or are undisputed.
3. 8.3 If the customer defaults on payment, we shall be entitled to charge interest on arrears at the rate charged by the bank for overdraft facilities, but at least 9 percentage points above the respective base rate of the European Central Bank.
4. 8.4 In the event of default in payment, we may, after notifying the customer in writing, suspend fulfilment of our obligations until payment has been received.
5. 8.5 Bills of exchange and cheques shall only be accepted by agreement and only on account of performance and on condition that they are discountable. Discount charges shall be calculated from the due date of the invoice amount.
6. 8.6 If it becomes apparent after conclusion of the contract that our claim to payment is jeopardised by the partner's inability to pay, we may refuse performance and set the partner a reasonable period within which it must pay concurrently with delivery or provide security. If the partner refuses to do so or if the deadline expires without success, we shall be entitled to withdraw from the contract and demand compensation.
7. 8.7 When placing the order, the customer is obliged to provide us with precise information about the legal form and legal representation of his company. If the information is incomplete or unclear, the customer shall be obliged to bear the costs incurred by us in obtaining information from the commercial register and/or trade register, irrespective of the occurrence of default.
8. 8.8 If no satisfactory credit report is issued on the customer with whom no business relationship has yet existed, if there are doubts about the customer's ability to pay or if the supplier has already had to apply for a default summons, the supplier shall be entitled to demand full advance payment of the gross order value.
9. 8.9 If a significant deterioration in the financial situation of the Customer occurs after conclusion of the contract, we may demand advance payment within a reasonable period and refuse performance until fulfilment. In both cases (8.8 and 8.9), we shall be entitled to withdraw from the contract and claim damages for non-fulfilment if the customer refuses to do so or if the deadline expires without result.

9 Delivery

1. 9.1 Unless otherwise agreed, we deliver "ex works". Compliance with the delivery date or delivery period shall be determined by our notification of readiness for dispatch or collection.
2. 9.2 The supplier reserves the right to choose the mode of dispatch.
3. 9.3 The delivery period shall only be deemed to have been agreed as approximate. It shall commence from the time at which we have received all information and approvals from the customer, if these are required, at the earliest with the dispatch of our order confirmation. It shall be extended appropriately in the event of force majeure.
4. 9.4 Partial deliveries are permissible to a reasonable extent. They shall be invoiced separately.
5. 9.5 In the event of changes to the contract at the request of the customer (instructions) which affect the delivery time, this shall be extended to a reasonable extent. Such orders (one or more) may not delay the fulfilment of the order by more than 3 months.
6. 9.6 Production-related excess or short deliveries are permissible within a tolerance of 10 per cent of the total order quantity.

10 Dispatch and transfer of risk

1. 10.1 Goods notified as ready for dispatch shall be accepted by the partner without delay. If the customer is late in accepting the goods, the risk of accidental loss shall pass to him. Furthermore, we are entitled to dispatch the goods at our own discretion or to store them at the partner's expense and risk.
2. 10.2 In the absence of a special agreement, we shall choose the means of transport and the transport route.
3. 10.3 The risk shall pass to the partner when the goods are handed over to the railway, the forwarding agent or the carrier or when storage begins, but at the latest when the goods leave the factory or warehouse, even if we have assumed responsibility for delivery.

11 Delay in delivery

1. 11.1 If delivery is delayed due to force majeure or due to an act or omission on the part of the partner, an extension of the delivery period appropriate to the circumstances shall be granted.
2. 11.2 The partner shall only be entitled to withdraw from the contract if we are responsible for the failure to meet the delivery date and the partner has unsuccessfully set us a reasonable grace period.

12 Means of production and retention of title

1. 12.1 The customer undertakes to provide us with the necessary means of production for the next quarterly production in good time, at the latest 14 days before the start of the quarter.
2. 12.2 The means of production made available to us by the customer shall not be transferred by way of a legal transaction, but shall be provided for the specific purpose of manufacturing the contractual product.
3. 12.3 We are permitted to process the parts and raw materials provided by the customer or to mix, blend or combine them with other items in order to manufacture the contractual product, provided that the respective means of production is intended for this purpose. The processing, mixing or combining (processing) of the Customer's tools is prohibited.
4. 12.4 Processing shall be carried out for the Customer in its interest.
5. 12.5 If we own the means of production and the Customer does not already acquire sole ownership of the respective manufactured contractual product by operation of law, we shall only transfer our (co-)ownership to the Customer upon full payment of the respective manufactured contractual product.
6. 12.6 Even as long as the contractual product is not yet the sole property of the customer, the customer is permitted to process the contractual product, to mix it with other objects, to combine it or to resell it in the course of business, as long as he is not in default of payment.
7. 12.7 In the event of the sale of a contractual product in our sole ownership, the customer hereby assigns to us its claim from the resale with all ancillary rights by way of security, without any further declaration being required. However, the assignment shall only apply to the amount corresponding to the price of the contractual product invoiced by us to the customer. If, in the event of sale, the Customer only has co-ownership, the assignment shall only apply to the amount corresponding to the value of the co-ownership share.
8. 12.8 The purchaser must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, the claims assigned to us or other securities, handing over the documents necessary for an intervention. This shall also apply to impairments of any other kind.
9. 12.9 If the value of the existing securities exceeds the secured claims by more than 20 % in total, we shall be obliged to release securities of our choice at the partner's request.

13 Material defects, compensation, liability

1. 13.1 The quality of the goods shall be based exclusively on the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples etc. of our partner, the latter shall assume the risk of suitability for the intended purpose. The time of transfer of risk shall be decisive for the contractual condition of the goods.
2. 13.2 We shall provide a warranty for material defects and defects of title at our discretion by repairing or replacing the goods free of charge. The customer expressly reserves the right to reduce the price or withdraw from the individual contract in which the defect occurred if the repair or replacement delivery fails. The right to compensation shall be determined in accordance with § 13 para. 3.
3. 13.3 The liability for damages and reimbursement of expenses is based on the statutory provisions. We shall be liable for any kind of breach of duty (pre-contractual, contractual and non-contractual) for damages and reimbursement of expenses only in the event of gross negligence and intent on our part or that of our vicarious agents. Liability is otherwise excluded. The amount of damages - except in cases of intent - is limited to € 5 million per damaging event. Liability under the Product Liability Act and other mandatory statutory provisions shall remain unaffected.
4. 13.4 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
5. 13.5 Claims for material defects shall lapse after 12 months. This does not apply if the law prescribes longer periods, in particular for defects in a building and for goods that have been used for a building in accordance with their normal use and have caused its defectiveness.
6. 13.6 In the case of printing and/or surface colours according to a template, sample or colour specification, we reserve the right to insignificant deviations in colour shade.
7. 13.7 Slight burr formation on metal and plastic signs is due to technical reasons and does not constitute a defect.
8. 13.8 The Supplier shall not be liable for any errors once the proofs or approval samples submitted have been approved by the Customer or if the Customer waives their submission.
9. 13.9 We must be given the opportunity to ascertain the defect complained of. Rejected goods must be returned to us immediately upon request; we shall bear the transport costs if the complaint is justified. If the partner does not fulfil these obligations or makes changes to the goods already complained about without our consent, he shall lose any claims for material defects.
10. 13.10 The partner's statutory rights of recourse against us shall only exist insofar as the partner has not made any agreements with its customer that go beyond the statutory claims for defects.
11. 13.11 If the customer demands the cancellation of the contract due to a defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect.

14 Change Requests

1. 14.1 Should the customer make a change to the order placed, we shall be entitled to the additional costs as well as the costs for services already rendered, including the calculated risk and profit surcharge, without prior notification.

15 Other claims, liability

1. 15.1 If we allow the customer to cancel an order once it has been placed, the customer must reimburse us for the costs of concluding the contract, including the loss of profit. The respective costs shall be charged in accordance with the work already incurred, depending on the effort involved.
2. 15.2 Should the Customer make a change to the order placed, the Supplier shall invoice the cost price incurred without prior notification.

16 Force majeure

1. 16.1 Force majeure, labour disputes, operational disruptions, unrest, official measures, non-delivery by our suppliers and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default, unless it has caused the default wilfully or through gross negligence. The contractual partners are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
2. 16.2 If delivery or performance becomes impossible due to the aforementioned events, the Supplier shall be released from its obligation without the Customer being able to withdraw from the contract or claim damages. The contracting parties are obliged to inform the other party immediately in writing of any obstacles of the type described above.

17 Place of fulfilment, place of jurisdiction and applicable law

1. 17.1 Unless otherwise stated in the order confirmation, the place of fulfilment shall be our registered office.
2. 17.2 The place of jurisdiction for all legal disputes, including in the context of a bill of exchange and cheque process, shall be our registered office. We are also entitled to bring an action at the registered office of the partner.
3. 17.3 The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany, excluding the conflict of laws provisions of the EGBGB and the CISG (UN Convention on Contracts for the International Sale of Goods).