Swoop

General terms and conditions MANK Designed Paper Products and Converting Service

Swoop
General terms and conditions

Terms of sale and delivery of Mank GmbH

Art. 1 General - Scope

1. Our Terms of Sale and Delivery shall be exclusively applicable, any Client conditions to the contrary, or any conditions which deviate from our Terms of Sale and Delivery will not be accepted, unless we expressly agreed in writing to the applicability thereof. Our Terms of Sale and Delivery shall also be applicable if we render the performance without any reservations, although we are aware of the Client’s conditions to the contrary or any conditions which deviate from our Terms of Sale and Delivery.

2. All agreements made between us and the Client with regard to the performance of the contract shall be laid down in writing herein, and the same applies to a waiver of the written form.

3. To the extent that the Client is an entrepreneur, our Standard Terms of Sale and Delivery shall also be applicable to all future businesses with the Client.

Art. 2 Proposal, Contracting, and Samples


1. All amendments, modifications or ancillary agreements relating to our proposal or the contact made, which are made by wire transfer, telephone or verbally, shall be confirmed by us in writing in order to be valid.

2. If the Client’s order is to be qualified as a proposal, we may accept such a proposal within two weeks of receipt. The proposal shall be binding upon the Client until such time period has elapsed. Our proposals shall be subject to further notice until receipt of our confirmation of the order.

3. If our proposals or confirmations of the order contain obvious errors, spelling or calculating mistakes, no valid proposal has been submitted, or no contract has been validly made. The Client shall inform us of any such errors in order to enable us to correct and resubmit our proposal or our confirmation of the order.

4. Purchases on a trial basis or for the purpose of inspection are not possible. The Client shall not have the right to exchange the goods if they do not find his approval. The goods shall not be supplied temporarily as ”samples” or similar. The postage of goods returned unfranked will be charged to the Client.

Art. 3 Terms of Payment

1. All prices are quoted exclusive of value-added tax, freight, packaging, and ancillary printing cost. The latter is shown on our current price list, as amended.

2. The price of the goods ordered, the value added tax as well as all monies owing pursuant to subsection 1 hereof shall be due for payment by domestic Clients within 30 days of delivery. If the amount invoiced is received on our account within 8 days of delivery, we shall grant a 2% cash discount. Export Clients shall receive the deliveries against advance payment only. For deliveries to new Clients, we reserve the right to demand shipment against advance payment or cash on delivery. The costs of the payment transaction shall be borne by the Client.

3. The Client has no right to retain payments except in case of counterclaims that have been validly established, that are uncontested or have been recognised by us. The same shall apply to any setoffs by the Client.

4. The Client shall not assign any claims he may have because of the business relationship with us.

5. In the event that we have to render performance first under a reciprocal contract, we may refuse to render the performance if it becomes obvious after the conclusion of the contract that our claim to the counter-performance is jeopardised by the Client’s insufficient capability to perform. In the event of a fundamental change of the financial situation and imminent insolvency of the Client we shall be entitled to perform deliveries against advance payment only, or to demand furnishing of a suitable security. If no such security is furnished within a reasonable period of time, we shall be entitled to demand damages for non-performance after expiry of this term.

Art. 4 Price Changes

1. Price changes under the present contract are permitted if more than 6 weeks have passed between the conclusion hereof and the agreed delivery date. In the event that labour, material cost or the cost prices on the market have increased during this time, we shall be entitled to raise the price appropriately according to the cost increases. We will evidence these cost increases to the Client upon his request. The Client shall only be entitled to rescind the contract if the price increase significantly exceeds the increase in general cost of living prevailing between the order and the delivery.

2. We reserve the right to increase the prices of our goods and printing services indicated in our catalogues and in the world wide web to the extent that the cost prices on the market, the labour cost or the material cost rise, e.g., due to a change in the exchange rate of the US dollar.

Art. 5 Packing and Shipment

1. The goods are delivered free of charge within Germany if the amount invoiced exceeds Euro 255.00. Otherwise, the Client shall bear the shipping cost. For deliveries to other regions, the export Client shall always bear the shipping cost. If the Client is an entrepreneur, deliveries shall normally be made at the Client’s risk. In this case, we shall not be liable for the default of our own transport personnel unless we or our agents have acted deliberately or grossly negligently.

2. Unless specifically agreed otherwise, we may choose the shipping method in our discretion.

Art. 6 Object

1. The right to modify the object hereof shall be reserved to the extent that the shape, colour, size and / or the general design of this object deviates from the description in our catalogue or the sample provided, and to the extent that such deviations do not impair the normal commercial use thereof, or are due to the nature of the materials used, and the Client can be reasonably expected to accept them. Reference is furthermore made to our Client information as far as reasonable, production-related deviations are concerned. The Client information may be obtained from us or inspected on our premises at any time.

2. The colour information provided in our catalogue, our proposals and our order confirmations refers to a print on a white background. Divergent colours are possible if the background is of a different colour. The same applies to prints on natural products. In this case, there may be discrepancies with regard to the printed colour and the embossing depth. Printing colours take about 2 weeks to cure optimally. Therefore, abrasion tests cannot be performed before this period of time has expired. Again, as in subsection 1, reference is made to our Client information.

3. All tools, films, data, printing blocks, and rollers, which have been manufactured or purchased at the Client’s expense for the production of the goods shall become our property, even if the Client was charged with the cost of purchasing or manufacturing them, because these items belong to our production know-how. To the extent that tool cost is specified in a proposal, such cost is based on an estimate. If it should turn out that this amount is not sufficient for the production or manufacture of the tool, we shall be entitled to charge the amount actually incurred to the Client.

Art. 7 Delivery Time

1. The delivery time shall commence upon signing of the contract, but not before the provision of the documents, approvals, releases to be submitted by the Client, and the receipt of an agreed downpayment. The delivery time has been complied with if the goods are ready for shipment or collection.

2. The delivery time shall be extended upon the occurrence of unexpected impediments which are beyond our intention, such as production upsets, delays in the supply of basic materials, to the extent that we can prove that such impediments are of considerable importance for the delivery of the items to be delivered and are not our responsibility. The same applies if such circumstances are experienced by our sub-suppliers. The delivery time shall be extended accordingly by the duration of such measures and impediments. The circumstances described above are not our responsibility even if they occur in the course of an existing delay.

3. Partial deliveries shall be permitted within the delivery times specified by us to the extent that they do not result in any disadvantages for the use of the products.

Art. 8 Retention of Ownership

1. Printing patterns (dies, lithos/films, printing blocks and files) shall become our property. Dies, lithos/films, printing blocks and Client files or artwork reformatted by us will be kept by us for maximally 2 years. The original Client files or artwork will be kept beyond the delivery date subject to prior agreement and against special payment only. Otherwise, they shall be immediately collected by the orderer or else they will be disposed of.

2. Ownership of the items delivered is reserved until they have been paid in full. If the Client is an entrepreneur, ownership of the items delivered is reserved until receipt of all payments from the business relationship with the Client. The Client may sell the goods delivered in the course of ordinary business, however, he shall not pledge them or give them as security. The Client hereby assigns to us all claims against his customers arising from such a sale. The Client shall inform us at any time of such claims, and supply us with all necessary documents, in particular, copies of all invoices, provided that he fails to meet his obligation to pay back any amounts, and especially if our Client is in default of payment. This provision shall still apply even where individual or all claims are included in a current account and the balance has been struck or accepted.

Art. 9 Client’s Obligations

1. The Client shall provide all documents and data necessary for printing and for the general performance of the contract immediately after receipt of our confirmation of the order.

2. Prior to printing, the Client shall receive a ”passed for press” statement for the advertising print. The Client shall check the printing position, spelling and motif as well as other information. If no errors of this type are present, the Client shall sign the ”passed for press statement” within 5 days of receipt. The Client shall inform us of all errors concerning the printing position, spelling or motif, if any, within the time period specified above. If no errors are communicated or the ”passed for press” statement is not signed within the given period of time, we reserve the right to delay the agreed delivery date. Our claims for damages resulting therefrom shall be enforced as stipulated by the law. Proof copies shall only be made at the Client’s express request against payment of a fee. If it is necessary for reason of printing technology to prepare a proof copy, this requirement will be stated on our confirmation of the order and charged to the Client.

Art. 10 Third-Party Copyrights

The Client shall ensure that the orders placed by him or the imprints submitted by him have been approved by the respective copyright owner. We will not conduct any copyright searches. The same applies to rights relating to trademarks, utility models, registered designs or any other industrial property rights. Upon our first request, the Client shall hold the us harmless against all third-party claims based on an infringement of any industrial property rights.

Art. 11 Termination or Cancellation of the Contract

1. In the event of a termination of the contract by the orderer, we shall be entitled to demand payment of up to 20% of the contractual amount without evidencing the expenses incurred so far, if the notice of termination is received by us before the artwork has been forwarded to the graphics designer. If the notice of termination has been given after the artwork has been forwarded to the graphics designer but before the ”passed for press” statement has been signed, we shall be entitled to demand payment of up to 40 % of the contractual amount without evidencing the expenses incurred so far. If the notice of termination has been given after the ”passed for press” statement has been signed but before the lithos/films and tools have been produced, we shall be entitled to demand payment of up to 55 % of the contractual amount without evidencing the expenses incurred so far. If the notice of termination has been given after the lithos/films and tools have been produced, we shall be entitled to demand payment of up to 100 % of the contractual amount without evidencing the expenses incurred so far. The Client shall be entitled to prove that we saved higher expenses.

2. We shall be entitled, in our discretion, to demand reimbursement for the expenses actually incurred instead of the lump sum amounts specified in the preceding paragraph.

3. Subsections 1 and 2 shall apply, mutatis mutandis, to a cancellation of the contract.

Art. 12 Warranty for Defects - Liability


1. For a time period of 12 months of acceptance or completion of the goods, we shall be entitled, in our discretion, to correct the defects or supply substitute goods free of charge. If we are unable to correct a defect covered by our warranty obligation, if subsequent performance has failed, or if the Client cannot be expected to accept further attempts to render subsequent performance, the Client may cancel the contract or demand a reduction of the purchase price instead of subsequent performance or substitute delivery.

2. Any goods returned by the Client to us in the scope of subsequent performance shall be sent postage prepaid. On request, the Client shall be reimbursed for the postage or - if possible - receive parcel labels free of charge.

3. The costs of subsequent performance, which have been incurred because the goods were taken to a place other than the place of performance shall be borne by the Client. All parts that have been replaced shall become our property. Subsequent performance shall be subject to payment of the purchase price, less an amount retained in respect of the defect, by the Client. The amount retained shall be limited to the triplicate costs of correcting the defects.

4. The rectification of defects shall not be deemed to have failed after an unsuccessful second attempt.

5. The Client’s right to demand damages (instead of or in addition to performance) or reimbursement for futile expenses in the event of a defect in addition to subsequent performance, a reduction of the purchase price or the cancellation of the contract shall not be affected by the preceding provisions.

6. We shall be liable for any fatal injury, bodily injury or health impairment that was suffered at our fault. Besides, we shall be liable without any restrictions for gross negligence or wilful acts only. We shall be liable for slight negligence only if an obligation was breached the observation of which was of particular importance for attaining the purpose of the agreement (cardinal obligation). In the event of a breach of the cardinal obligation, liability shall be limited to five times the amount of the sales price and to those damages the occurrence of which typically has to be expected in the course of the contract made.

7. The Client’s claim to reimbursement for the damage caused by the delay shall be limited to 10% of the agreed purchase price in the event of slight negligence on our part.

Art. 13 Duty to Inspect and Complain


1. The Client shall inspect the delivered goods for obvious defects an average client would be able to detect easily, and for discrepancies in quantities. Obvious defects and considerable, easily visible damages as well as discrepancies in the quantities of the goods shall be stated in a written complaint which shall be sent to us without delay. The defects shall be described in all details possible. We shall furthermore be informed of any defects that are not obvious immediately after they have been detected by the Client. Section 377 of the Handelsgesetzbuch (commercial code) shall furthermore be applicable.

2. In the event of a breach of the obligation to inspect and complain, the goods shall be deemed to have been approved regardless of the defect in question.

Art. 14 Place of performance and venue

1. Our principal place of business shall be the place of performance of all services. The exclusive venue for all disputes arising from this Agreement shall be Koblenz.

2. German law shall be applicable, to the exclusion of the laws on the international sale of goods, even if the Client’s principal place of business is abroad.

Art. 15 Miscellaneous

1. The assignment of the Client’s rights and obligations resulting from the contract concluded with us shall require our written approval in order to be valid.

2. In the event that a provision should be or become invalid, the validity of the remaining provisions shall not be thereby affected.


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