General terms of use

Terms and Conditions of delivery and payment of FRANZ BARTA GMBH (“Barta”), version September 2007

(in all cases binding for offers, legal transactions and services of Barta, if not expressly recognised by us otherwise in writing)

• Offers, price and order

Our price offers are based on the applicable daily rates for raw materials and daily expenses. Offers to us (“Orders“)
will become binding when received. The acceptance/carrying out of the order – for whatever reason – will remain our right.
Offers by us are without binding effect and only to be regarded as request for proposal of an order; we will not be liable for the correctness of a quote. Contracts (“Contracts”) on our deliveries and services (“Deliveries”) require our express acceptance to become legally binding. Objections of the customer due to deviations of our order confirmation from the order letter of the customer must be received by us within 2 working days after receipt of our order confirmation, otherwise the customer has recognised the content of our order confirmation as relevant. The customer undertakes to check our order confirmation for the correctness of its contents, in particular whether the requested fonts, motifs or images are correctly named by us. An increase of the materials price as well as an increase of wage costs due to scale pay agreements after determining the price, but before calculation the delivery, will entitle us to charge the resulting price increase. This fact is expressly authorised before the purchase by accepting our order confirmation. Oral or remote oral agreements must be confirmed in writing in order to be binding. We will be entitled to request a company signed order letter before executing an order as a rule.

• Terms of payment, contractual exclusion of setoff

For national deliveries payment net in cash after 30 days or within 8 days with a 2% discount. For exports, we deliver against irrevocable bank order if not agreed otherwise. When exceeding the payment objective, we charge default interest in the amount of the applicable bank interest rates for overdrafts. The customer will not be entitled to settle with own claims against claims from Barta.

• Reservation of title

Goods delivered will remain our property until full payment of all our claims connected to the delivery. If the goods are processed or combined with other objects, we will be co-owners of the new object in the amount of the share resulting from the value of the processed reserved goods to the value of the new object. The customer will be entitled to hand on the goods in orderly business transactions, as long as he does not default on the payment. Goods produced with our goods must not be handed over until our claims are paid in full. The customer will already now – without needing any further special acts of transfer – any claims to cover all of our claims with all ancillary rights resulting from reselling the reserved goods against his customers to Barta, this being in the amount of the value of our delivery. This will apply in accordance with editing or processing, combining or connecting. If our goods or objects developed with them become core components of goods of a third party, the customer will already now transfer his claims obtained for this, which may also cover his other services, with all ancillary rights to us, this being in the amount of the value of the delivery. The goods under reservation of title must neither be pawned by the customer or assigned by way of security. For any distains or other demands by third parties, the customer undertakes to claim our reservation of title and to notify us immediately.

• Packaging

The price includes the simple wrapping of the print products only. If special packaging or bundling is required, it is further charged at production costs.

• Delivery period

The delivery period starts on the day of receipt of order at our house on the condition that all working documents are available clearly and nothing otherwise is noted in our order  confirmation. It ends the day the goods leave the plant. Our delivery periods normally consist of the period from receiving the order to sending a draft or the copy and from the period from the day of receiving back the approved print document to the day of sending the goods. Due to technical difficulties, which may occur when making our special products, delivery periods are subject to change and non-binding as a rule. If in certain events a binding deadline is given by us in writing, we reserve the right to request an appropriate period of grace even if there is no case of force majeure. In the event of delayed delivery, the customer will not be able to exercise the legal rights until setting a period of grace. Lost profits cannot be claimed. Compensation claims due to delayed delivery are excluded. Force majeure releases us from any supply obligations as a rule, regardless of whether this force majeure resulted in our operation or in the plants of distributors and suppliers. In such events, the customer will be entitled to withdraw from the order. Compensation claims of whatever type cannot be derived against Barta from such events.

• Delivery             

The delivery is ex works, 1150 Vienna, per invoice and at the risk of the customer if not expressly agreed otherwise. Excess or short deliveries are allowed up to 10% of the order quantity and are balanced pro rata at the invoice price agreed. Guarantee claims are not possible for minor deviations in colour nuances and in formats as well as for minor deviations of press proof and production print or of original and production print and cannot be the object of a complaint. A guarantee for the authenticity of colours, bronzes, varnish and impregnation is only provided to the extent that the distributors are obliged to us or which we expressly grant in writing. We will not be liable for print and execution errors, which the customer missed in the copies, drafts, press proofs or templates regarded by him as ready for print. Changes to text and drawings provided by telephone are carried out by us without any liability for their correctness.

• Liability (warranty, compensation)

Unless agreed otherwise, the legal warranty regulations will apply. Properties are only ensured in the sense of Section 922 (1) Austrian General Civil Code, if they are expressly accepted by Barta. Details in product specifications are not expressly assured properties. Complaints are only allowed within one week of receiving the goods and must be communicated immediately. Complaints regarding a part of our delivery cannot result in an objection of the entire delivery. We have the right to repair or replace. Complaints for hidden defects which are not established after careful examination within 8 days must be made within 3 months of supply. We will not be liable for improper use of our products as a rule. Our technical product and data sheets as well as other technical details are in line with our best knowledge but a bindingness for the results to be achieved when using our products cannot be derived from it. If the property of a good delivered by us means that its processing results in an unsatisfactory result or even in damage to other objects, it will be agreed upon that the customer will perform a respective test processing as well as apply due care for the actual processing in order to prevent any damage caused by open or hidden defects of the goods. We are forced to reject any liability for damage which occurs from further processing our goods as a rule. A reduction only not conversion or compensation can be demanded. We have the right to repair or replace. Barta will be liable for any damages, in particular for those which are caused while executing the order, only for own gross fault and for gross fault of vicarious agents. Replacing gross fault and for gross fault of vicarious agents. Replacing consequential or asset damages is ruled out as it is for non-achieved savings, interest losses and damages from third party claims against the customer. The order has not protective effect for third parties. In all cases of liability of Barta (also under the other provisions of these GT&Cs), the customer must prove Barta’s fault resulting in liability. If the customer is held liable due to the Product Liability Act (PHG), he will expressly waive the right to recourse in the sense of Section 12 PHG. Compensation claims lapse after  six months of learning about damage and tortfeasor, but in any case after three years of providing the service. Other compensation claims of the customer, of whatever type, are excluded – with the exception of gross fault of Barta.

• Processing

On placing an order, the customer declares that he has established the fitness for purpose of the goods ordered by him with us on the basis of sample processing for the planned use. We undertake to execute the goods with regard to their technical structure in the same way as the templates checked on placing the order. For issues and damage when processing the delivered goods resulting from insufficient advance examination or after conducting advance examination by changing a processing factor (print reason, processing temperature, work method, etc.), we will not be liable.

•  Title

Lithographies, drawings, slides and print plates as well as any other documents required for the production process and made by us will remain our non-sellable property even if the customer compensates for these works. This also applies for work documents which are made on our behalf by other companies.

• Special charges

Drafting and printing costs are charged additionally and are not included in the delivery prices. The same will apply for all special requests exceeding usual demands of the customer, e.g. for special cutting or bundling of the goods. Subsequent change requests of the customer or his agents as regards the agreements from the contract will be charged in accordance with standard calculations.

• Storage and on-demand supply

Materials provided by the customer, such as handed over manuscripts, originals, print plates, films, data and data carriers of all kind must be delivered free of all charges to 1150 Vienna. They are kept at the sole risk of the customer. The insurance of these goods against any risk is the responsibility of the customer. We do not accept any liability for damage or loss of such objects, unless the damage or loss was caused by gross fault which is our responsibility. If a temporary storage of finished goods with us is expressly agreed, we cannot be held liable for damage which occurs despite compliance with acceptable care. We are similarly not obligated to insure stored goods. For on-demand orders, the customer undertakes to accept the total amount within 6 months if no other agreement is expressly made. A withdrawal from the acceptance is no longer possible after completing even just a part of the goods.

• Corrections

We are obligated to submit a template of a galley slip, draft, print or a copy only if this was expressly agreed during the order and confirmed by us. If such templates are not sent back by the customer within 8 days of receipt with approval or change notice, the non-statement by the customer is deemed as approval. If, however, further processing of the order requires a statement from the customer, the time of non-statement is deemed as interruption of the delivery period. If such an interruption of the delivery period caused by the customer is less than 4 weeks, we will be entitled to charge the work completed by us pro rata, unless explicitly agreed by us in writing. As stated in Item 6, we will not be liable for errors missed by the customer.

• Reproduction right

We are not obliged to check whether our customer has the right to use and duplicate the (print) templates or to use them in the intended way but are entitled to assume that our customer has all rights which are required to execute the order with regard to third parties. Our customer undertakes to release us from any claims raised by third parties from breaches of copyrights, ancillary copyrights, or industrial property rights or personal protection rights. We must notify our customer of such claims immediately and announce a dispute in the event of court proceedings. If our customer does not join us after notification of the dispute in the proceedings, we will be entitled to recognise the claimant’s claim and to demand compensation from our customer regardless of the legality of the recognised claim.

• Type of contract

All agreement arrangements must be made in writing. Oral agreements, unless they are confirmed in writing, are deemed as not made.

• Company and brand logo                                                                               

We are as a rule entitled to place our company and brand logo on the printed works to be made without special approval by the customer.

• Jurisdiction

The place of fulfilment for all contractual relationships which are subject to these delivery and payment terms is Vienna. For legal disputes on the existence or non-existence of such a contractual relationship and for legal disputes from such contractual relationships, we may choose either our jurisdiction or the general jurisdiction of the customer for charges raised by us. For charges against us, Vienna will be the exclusive jurisdiction responsible.

• Validity of the delivery and payment terms, deviations

Deviations from these payment and delivery terms will not become valid until made in writing. Possible terms and conditions of the customer are hereby contradicted; they will similarly not obligate us if Barta does not again contradict them when concluding the contract. These terms and conditions will apply as the framework agreement for all subsequent deliveries connected to the order and for all additional legal transactions with the customer  (in particular additional and subsequent orders) even if their validity was not expressly agreed again.

• Data processing

Proper recording of business cases is carried out using electronic data processing. The legal provisions are complied with.

• Applicable law

For all legal relations from the contractual relationship, the laws of the Republic of Austria are deemed as agreed.