General Terms and Conditions
TRIK Produktionsmanagement GmbH
1. General information
TRIK Produktionsmanagement GmbH (hereinafter referred to as “TRIK”) offers its customers creative end-to-end solutions in the field of marketing. This includes, in particular, the development, designing and procurement of advertising material. TRIK exclusively caters to commercial customers (no end customers/users).
Subject to relevant legal regulations, these General Terms and Conditions (GTC) conclusively regulate the legal relations between TRIK and its customers. The customer recognises the subsequent stipulations with TRIK as binding even for future transactions.
The stipulations of the customer deviating from these regulations are irrelevant and are hereby expressly contradicted. There are no agreements going beyond these regulations. Such agreements require written form for their effective inclusion.
TRIK reserves the right to amend these stipulations in part or in whole. If the customer does not object to the amended stipulations within 14 days of their announcement, the amended stipulations shall be deemed as agreed upon. The currently valid version of the GTC is prevalent.
The customer is aware that certain products and services can be subject to import / export checks and/or restrictions. It is hereby agreed that the prior inspection of and compliance with such stipulations is the sole responsibility of the customer. In case special documents are required for the import /export of certain products and services, their procurement is usually the responsibility of the customer. The customer expressly agrees that a product or service cannot be imported / exported or resold – directly or indirectly, separately or as part of a system – if the customer has not previously ensured compliance with all the legal regulations and applicable legal stipulations at his own expense and, for example, has also not obtained the necessary consent from a responsible authority and / or another (state) body for this. If TRIK obtains such consent or the necessary evidence for the customer, the customer acknowledges that the costs incurred are at his expense. The same applies if TRIK procures special documents for the customer for the import/export of certain products and services. In case the customer requires a certificate of origin, he must inform TRIK of this right at the time of placing the order; TRIK is authorised to charge the customer a lump sum of EUR 30 for the additional costs incurred per certificate of origin.
2. Conclusion of contract
The products and services provided by TRIK represent a non-binding invitation to submit an offer by the customer. In this regard, the aforementioned specifications and further details of the products and services offered by TRIK are non-binding. An offer always serves as a declaration of the customer’s intention to conclude a contract. The customer is bound to this if the products and services ordered by him can be delivered by TRIK in the desired specification and quantity within a reasonable period of time. If TRIK does not confirm this to the customer and has not yet begun the execution of the order within 14 days after submitting his offer, the customer is no longer bound to his offer.
TRIK’s acknowledgment of receipt of an order / offer does not constitute a declaration of acceptance.
Declarations of intent made by TRIK in the course of the conclusion of the contract shall always be subject to a correct and timely self-delivery by its suppliers. This does not apply if TRIK is responsible for incorrect or no delivery. In case the implementation of a contract does not seem possible for TRIK, e.g. due to the unavailability of a particular product, TRIK informs the customer accordingly without delay. TRIK immediately reimburses any partial or complete return service that has already been rendered.
Upon request of the customer within the scope of an imminent contractual relationship, preliminary services rendered (designs, drafts, etc.) can be charged to the customer considering the time spent, even if it does not lead to the conclusion of a contract. This does not apply if TRIK is responsible for the non-completion of the order.
If TRIK provides the customer with preliminary services of the aforementioned type, the customer must release the resulting products before further implementation of the contract. The inspection period is 14 days from the receipt of the products by the customer. After the end of the inspection period, the approval is deemed to be declared.
The prices provided by TRIK do not include the statutory value-added tax applicable at the time of conclusion of the contract. Shipping and packaging costs are not included.
3. Terms of payment, (extended) proprietary rights
Immediately after the conclusion of the agreement, TRIK is entitled to demand an advance payment of the expected final invoice amount or a part thereof, which is at the discretion of TRIK, and to start with the manufacturing/commissioning of the contractual products and services only after the receipt of the corresponding payment. TRIK makes use of this right especially for new customers. In this context, TRIK indicates that the contractual articles/advertising material deal with products to be manufactured for that specific customer, for which TRIK cannot provide preliminary services. The data, films, tools, screens and stick cards, etc. required for the implementation of an order are not stored by TRIK after the order has been concluded, unless otherwise agreed upon.
TRIK is entitled to send an electronic invoice for the agreed service (e.g. via email).
If the contract stipulates definable partial services to be rendered such as the creation of concepts, etc., partial payments with respect to the total amount can be due after the relevant delivery, depending on the extent of the partial service with respect to the total order. TRIK is entitled to demand partial payments, clause 3.1 notwithstanding.
Advance payments of the customer according to clauses 3.1 and 3.2 are settled against the final invoice. At the time of transfer of risk, a (remaining) amount that is still to be paid is due for immediate payment and without deduction. The customer must pay within 30 days at the latest. In the event of default, the customer must reimburse the incurred damages to TRIK together with an interest that is 8 percent more than the basic level of interest.
All the products and services delivered to the customer remain the property of TRIK until complete payment. The customer is liable for such products and services that are the property of TRIK.
The customer is entitled to use the delivered products and services or to sell them in the ordinary course of business. TRIK can revoke this entitlement to use and sell the products if the customer has not fulfilled his payment obligations. The customer now completely assigns to TRIK all claims that he acquires from the sale to third parties as well as claims from the insurance services. The customer is revocably entitled to collect these claims. TRIK will only declare a revocation and collect the claims if the customer defaults his payment obligations, if he has stopped the payments or if an application for initiation of insolvency proceedings has been filed.
Any warranty claims do not entitle the customer to refuse the return service, unless TRIK acknowledges the complaint of defects made by the customer in writing.
TRIK reserves all rights to the services rendered by TRIK to the customer within the framework of an imminent contractual relationship such as the creation of designs, drafts, etc. with regard to the rights such as copyrights / industrial design / trademark rights, etc. manifested in this preliminary services. TRIK does not grant the customer any utilisation rights of any kind, unless otherwise agreed upon. This also applies if the services have been created with the assistance of and based on the customer’s specifications. The customer must be regarded as the co-owner in such cases; he however irrevocably waives all claims to the assertion of usage, recovery and/or other rights relevant according to the Copyright Act against TRIK.
By placing the order, the customer declares that the material provided to TRIK for the implementation of the contract is free of any third party rights, or that he has been granted unrestricted usage rights by the respective right holder. In this respect, the customer must clear all rights for the material provided to TRIK before placing the order. This especially applies to the specific order of certain logos, designs and other files.
5. Shipping, delivery, transfer of risk
If the customer wants a delivery, this can take place against advance payment, provided that the parties have not agreed upon any other terms of payment.
The same applies for the delivery of the samples to be shipped at the request of the customer.
The customer is responsible for any incurred shipping and packaging costs, etc.
TRIK is entitled to increase the prices of the products and services to be provided by it in accordance with the contract if there are more than six weeks between the conclusion of the contract and the agreed delivery date and if the wages, material costs or the market cost prices increase by more than 10 percent or the exchange rates for the currency of the country of production drop by 10 percent during this period.
TRIK is responsible for the selection of the contractor to be commissioned for the shipping. This selection takes place after careful and conscientious assessment in the interest of the customer.
TRIK fulfils its delivery obligation with the delivery of the product to the contractor commissioned for its shipment. The risk for damages, if any, to the product is passed over to the customer at the time of delivery.
TRIK fulfils its contractual obligations with utmost due diligence and in the interest of the customer. The customer is aware that there the delivery might be exceeded or undershot by up to 10 percent due to reasons related to production. Such overdelivery or underdelivery does not constitute a defect that triggers warranty rights. Even a minor reduction in the usability does not entitle the customer to claim any warranty rights. In case of an underdelivery of more than 10 percent, TRIK creates a corresponding credit note for the customer. Post-production, etc. is ruled out. In case of excess delivery, it is charged to the customer to the relevant extent.
TRIK guarantees that the products and services provided by it have the agreed quality at the time of transfer of risk or, if no agreement has been made regarding the quality of the product, the products and services are suitable for the use defined according to the contract or are suitable for use and exhibit a quality as is customary for products and services of this type and that the customer may expect for that type of a product or service. TRIK does not undertake any warranty beyond that. TRIK undertakes no guarantees of any nature.
The goods provided by TRIK include products of standard type and quality from industrial mass production. For products with soft materials and fabrics, negligible production differences in the length, weight, width, fibre composition as well as colour do not entitle the customer to claim any warranty rights.
In case of products that are manufactured or refined manually, there might be differences in the quality of the products as well as the quality of refining even within a batch. Such minor variations due to manual work do not constitute a defect that triggers warranty rights. The same applies to differences between pre-production samples and mass production.
In case of products that are to be provided with laser markings, in particular laser engravings, upon request of the customer, there may be obvious contrast and/or colour fluctuations even within a serial production batch due to product-related conditions such as the material composition of natural substances.
TRIK and its agents use different printing techniques for printing, depending on the requirements and according to their own discretion. Commercial and technically unavoidable tolerances in the colour, quality, material, light fastness, variability and deviation of the material and printing colours as well as of the weight do not entitle the customer to claim any warranty rights. The same applies to colour deviations between the template and reproductions as well as between proofs and the final print.
In particular, there may be aberrations
a) when using the transfer printing method grid
b) when using the sublimation printing process.
If the customer specifies his colour requirements according to the Pantone colour system, there may be minor deviations of up to ± 1 colour tone (while dyeing fabrics, up to ± 2 colour tones), depending on the printing process as well as for technical reasons.
The aforementioned colour fluctuations or the engraving contrasts do not constitute a defect that triggers warranty rights.
TRIK does not provide a guarantee with regard to the material quality, basic colour, placement of the logo and logo reproduction without a written approval of a physical preproduction sample by the customer.
TRIK endeavours to process the contract as quickly as possible, but does not provide a guarantee for specific delivery deadlines. This is not applicable, provided TRIK has explicitly guaranteed a certain delivery deadline or confirmed it in writing.
The customer is under obligation to inspect the products and services immediately upon their receipt with utmost care. Defects, if any, must be notified to TRIK immediately, but no later than 7 days after receipt. The same applies to defects that are recognised only at a later date. If the notification of a defect does not take place within the deadline of 7 days, the delivered goods shall be considered approved.
In the event of a defect for which TRIK is responsible, TRIK can either rectify the defect at its own expense or can replace the defective goods. If the corrective measures are not successful twice, the customer is entitled to either withdraw from the contract or demand reduction in the contract price.
TRIK bears the costs incurred in the course of repair, particularly the travel and transport costs, only if the customer has not moved the goods to a location other than where the goods were first delivered. TRIK bears the costs of a replacement delivery. Unless otherwise agreed upon, the replacement delivery usually takes place at the location where the products were first shipped.
Unless subject to an explicit written consent, TRIK does not accept non-free returns (return shipments). Notwithstanding the above, TRIK reimburses the customer for the costs incurred in the event of a justified return shipment, provided they appear to be justified from an objective point of view on the date of shipment. In principle, TRIK does not complain about return dispatch costs if they are negligible. Every return shipment must be agreed upon beforehand between the two parties.
TRIK shall be liable for damages incurred at the customer’s site only in case of deliberate intent and gross negligence.
Any liability is limited to a foreseeable, typically occurring damage. In particular, TRIK is not liable for circumstances not required for the actual contractual purpose. TRIK is also not liable in the event of minor negligence in case of negligible contractual obligations and/or negligible secondary obligations arising from the contract. The liability of TRIK and its representatives/staff is specifically excluded from liability limitations for damages resulting from the damage to life, limb or health of the customer.
Within the scope of processing of this agreement, TRIK does not assume liability to ensure that the implementation of the customer order does not violate any statutory regulations, especially that it does not violate any third party rights or affect any competition law regulations. It is the responsibility of the customer to check and ensure that the services and products commissioned by TRIK are legally acceptable. The customer completely relieves TRIK from the relevant claims (Clause 1.5).
In case of agents and representatives, TRIK is not liable for damages arising due to minor negligence.
Any liability is only towards the customer as contract partner. Under no circumstances are uninvolved third parties entitled to claims arising from the contract concluded between TRIK and the customer.
Claims made against TRIK, which are not based on deliberate intent by TRIK, lapse within one year.
8. Reservation of rights
TRIK retains all property rights and copyrights for all the artistic work as well the final designs of images, drawings, articles and other documents. They may be used by third parties only with the explicit written consent of TRIK.
TRIK is entitled to use and reproduce the articles created as part of the customer order and the name of the customer for advertising, as reference or as sample as well as to put forth the name of TRIK at the relevant places.
9. Data protection
TRIK saves and uses the customer data provided to it for order processing and passes it on to third parties for this objective. TRIK further reserves the right to use the data for its own advertising. The customer can object to this use of the data for advertising at any time.
Customer data is not forwarded to third parties for advertising.
10. Final regulations
If a regulation of the GTC become invalid, this does not affect the validity of the remaining regulations. The parties undertake to replace the invalid regulation with an agreement that comes as close as possible to the interest and significance of the invalid regulation. The same is applicable in the event that the regulations of this contract have a loophole that is not intended by the parties.
The place of fulfilment is Berlin. Berlin is agreed upon as the court of jurisdiction. The German law is applicable; the application of the United Nations on Contracts for the International Sale of Goods is excluded.
As on: 12/2016