1. scope of application
(1) The following General Terms and Conditions (hereinafter "GTC") shall apply to all business relations between MYRIX GmbH (hereinafter "MYRIX") and its customers. The GTC shall only apply if the customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law. The GTC do not apply to private individuals. Proof of business activity must be presented upon request.
(2) The GTC shall also apply in particular to contracts for the sale and/or delivery of movable goods irrespective of whether MYRIX manufactures the goods itself or purchases them from suppliers (Sections 433, 651 BGB). The GTC shall also apply in their respective version to all future corresponding contracts with the customer, even if they are not expressly referred to again; MYRIX shall inform the customer immediately of any changes to the GTC.
(3) MYRIX's GTC shall apply exclusively, even if the customer has conflicting terms and conditions of purchase. Deviating, conflicting or supplementary GTC shall not form part of the contract, even if they are known, unless their validity is expressly approved in writing. This requirement of consent shall apply in any case, for example even if MYRIX carries out a delivery to the customer without reservation in the knowledge of the customer's GTC.
(4) Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. The content of such agreements shall be governed by a written contract or written confirmation by MYRIX.
(5) Legally relevant declarations and notifications to be made by the customer to MYRIX after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2 Conclusion of contract and prices
(1) MYRIX's offers are not offers in the legal sense, but merely a non-binding invitation to the customer to place an order and are therefore subject to change. This shall also apply if X has provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which MYRIX reserves ownership rights and copyrights. Errors excepted.
(2) The customer's order of the goods shall be deemed a binding contractual offer. Unless otherwise stated in the order, MYRIX shall be entitled to accept this contractual offer within 14 days of receipt by MYRIX.
(3) Acceptance can be declared either in writing - e.g. by order confirmation - or by delivery of the goods to the customer.
(4) MYRIX reserves the right to over-deliver or under-deliver by up to 10% against payment for production-related over- or under-delivery of quantities customary in the industry.
(5) Post-contractual changes made at the request of the customer after approval has already been granted shall be charged to the customer, including the resulting production stop and the necessary changes to tools.
(6) The prices contained in the offer are net prices, which are therefore subject to statutory VAT. The prices are ex works of the respective manufacturer/supplier/importer, excluding packaging, shipping costs and customs duties, unless otherwise defined in the offer. Any costs incurred for bank charges for foreign bank transfers shall be borne by the customer. Costs for the creation of stencils and clichés as well as set-up shall also be incurred again for repeat orders. MYRIX charges a minimum quantity surcharge of € 30.00 for orders under € 500.00. Sample deliveries are excluded from this.
3. duties to cooperate
(1) The customer is obliged to cooperate in a timely manner, in particular to obtain the necessary permits.
(2) MYRIX shall be entitled to set the customer a reasonable deadline for the performance of the act of cooperation. If the deadline expires without success, MYRIX shall be entitled to withdraw from the contract. If required licenses or approvals are not available after conclusion of the contract, MYRIX shall be entitled to withdraw from the contract.
4. terms of payment
(1) The purchase price is due and payable within the periods specified below from the date of invoicing and delivery or acceptance of the goods. The invoice date shall be decisive for the calculation of the payment periods. Customers, with the exception of new customers/first-time customers, must make payment within 21 days of the invoice date without deduction, unless a different payment agreement has been made.
(2) After the expiry of 21 days, the customer shall be in default immediately, even without a reminder. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. MYRIX reserves the right to claim further damages caused by default. MYRIX's claim to commercial maturity interest (§ 353 HGB) against merchants shall remain unaffected.
(3) For bank transfers and checks, receipt of the credit advice shall be deemed receipt of payment. Even if MYRIX has already accepted checks from the customer, the entire debt arising from the contract shall become due immediately if checks are not honored by the bank.
(4) Terms and delivery modalities may differ for larger orders. Furthermore, MYRIX reserves the right to carry out a credit check. For such orders as well as for new customers, MYRIX reserves the right to demand advance payments or security deposits, which shall then be agreed between the parties by way of an individual agreement.
(5) If it becomes apparent after conclusion of the contract that MYRIX's claim to the purchase price is jeopardized by the customer's inability to pay (e.g. by an application to open insolvency proceedings), MYRIX shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), MYRIX may declare its withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
(6) The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer's counter-rights shall remain unaffected.
(7) If the above terms of payment have to be amended in favor of the customer, the customer shall bear all credit and ancillary costs.
(8) The additional costs incurred for order processing in the case of fixed deadlines and rush orders shall be borne in full by the customer. This applies in particular to increased shipping costs.
5. sample shipments
(1) Images and illustrations in catalogs are not binding for the actual execution of samples. Goods ordered without prior sampling cannot be the subject of a complaint, provided that the complaint does not relate to defects in the goods within the meaning of the statutory provisions, but is merely a design error that could have been avoided by prior sampling. This also applies in particular to orders for items with advertising.
(2) In the case of promotional items, the customer must first release the digital image material required for this purpose (customer's lettering or logo, etc.). With the declaration of approval, the risk for any errors in the image material shall pass to the customer, unless these are gross errors that could be recognized by MYRIX.
(3) Samples are only sent against payment and cannot be returned. The customer is also not entitled to a later settlement of sample costs.
(4) The standard quality of articles is of medium type and quality.
6. finishing orders for third-party articles
(1) Articles supplied by the customer for finishing (third-party articles) must be delivered free domicile. MYRIX shall not check the delivery for quantity and quality.
(2) Rejects in the finishing process of up to 5% of the delivered third-party goods are unavoidable, even if MYRIX takes the greatest possible care. Therefore, MYRIX shall only be liable for rejects exceeding the aforementioned 5% limit or in cases of gross negligence. Otherwise, the statutory provisions shall apply.
7. custom-made products
(1) Typesetting, repro, film and program costs as well as the processing of data shall always be charged on a time and material basis. MYRIX assumes no liability for the correctness of the data or artwork provided by the customer.
(2) The customer shall be solely responsible for checking the right of reproduction of all print documents. The customer shall be solely liable if rights, in particular copyrights of third parties, as well as laws of which MYRIX cannot have any knowledge, are infringed by the execution of his order. The customer shall indemnify MYRIX against all third-party claims based on such infringement.
(3) All copyrighted rights of use in any process and for any purpose to own sketches, drafts, originals, films and the like shall remain with MYRIX, unless expressly agreed otherwise. Means of production, such as films, lithographs, printing plates, clichés, screens, punches, etc. shall remain the property of MYRIX. Templates, final artwork, films, etc. sent to MYRIX shall remain the property of MYRIX unless return delivery is expressly requested in the order. Duplication, reproduction or forwarding of presentations, drawings, drafts, samples or templates created by MYRIX shall only be permitted with the express consent of MYRIX.
(4) Proofs and press proofs shall be checked by the customer for typesetting and other errors and returned to MYRIX ready for printing. Production approval must be given immediately. Otherwise, the agreed delivery time shall be extended accordingly. Production of the specific article shall be suspended until written approval has been given. MYRIX shall not be liable for errors overlooked by the customer. MYRIX cannot accept any liability for the correctness of texts for advertising imprints transmitted by telephone or for films provided. The customer shall bear the risk in this respect.
(5) In the case of orders for custom-made products, all details regarding design, dimensions, etc. must be confirmed in writing without exception.
(6) MYRIX may refer to its company on the contractual products. The customer may only refuse this if there is a legitimate interest and no legal requirements are violated.
8. delivery/delivery time
(1) In the case of delivery from an external warehouse, freight shall be charged from the distribution warehouse. Shipment shall be at the customer's expense and risk. The risk shall pass to the customer at the latest upon delivery ex works or ex distribution center. This shall also apply if carriage paid delivery by MYRIX has been agreed. The goods shall be shipped uninsured unless otherwise agreed. Unless otherwise agreed in writing, MYRIX shall be responsible for selecting the shipping route and means of shipment.
(2) Deliveries abroad are always made duty unpaid and untaxed at the risk and expense of the customer or recipient.
(3) Excess or short deliveries of items with advertising or custom-made products up to 1000 pieces at 10% and above that up to 5% of the ordered goods are permitted. The buyer is obliged to accept the excess or short quantities. The purchase price shall change in proportion to the excess or shortfall.
(3) The commencement of the delivery period stated by MYRIX shall be subject to the customer's clarification and fulfillment of all obligations to cooperate specified in clause 3.
(4) Specified delivery times are generally non-binding, unless the binding nature of the specified time is expressly confirmed in writing by MYRIX. The time of delivery shall be the dispatch ex works or warehouse or, if the goods are not dispatched on time through no fault of MYRIX, the notification of readiness for dispatch shall be decisive.
(5) If non-compliance with deadlines is due to force majeure, e.g. mobilization, war, riot, or similar events, e.g. strike or lockout, the deadlines shall be extended accordingly.
(6) For the duration of the examination of final artwork, preliminary samples, clichés, etc. by the customer, the delivery time shall be interrupted in each case, namely from the day of dispatch to the customer until receipt of his statement. In the case of fixed deadlines, approval samples must be approved without changes within the time specified by MYRIX, otherwise the fixed deadline shall lose its validity; however, this shall not entitle the customer to withdraw from the contract. If the order confirmation has already been issued and changes are subsequently received from the customer that affect the production time, the delivery time shall be adjusted accordingly upon confirmation of the changes.
(7) If X is unable to meet binding delivery deadlines for reasons for which MYRIX is not responsible (non-availability of the service), MYRIX shall inform the customer of this immediately and at the same time notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, MYRIX shall be entitled to withdraw from the contract in whole or in part; MYRIX shall immediately reimburse any consideration already provided by the customer. A case of non-availability of the service in this sense shall be deemed to be, in particular, the failure of MYRIX's suppliers to deliver to MYRIX on time if MYRIX has concluded a congruent hedging transaction, neither MYRIX nor its suppliers are at fault or MYRIX is not obliged to procure in the individual case.
(8) MYRIX shall be entitled to make reasonable partial deliveries and to invoice such partial deliveries, even in the case of fixed deadlines.
(9) If the customer is in default of acceptance or culpably violates other duties to cooperate, MYRIX may assert the rights under
§ 326 BGB. MYRIX shall then be entitled to demand compensation for the damage incurred by MYRIX in this respect, including any additional expenses incurred. If the customer does not accept the delivery within a reasonable period or notification of dispatch or if dispatch is not possible due to circumstances for which MYRIX is not responsible, MYRIX shall be entitled to either take the delivery into storage itself or store it with a forwarding agent at the customer's expense and risk. MYRIX reserves the right to make further claims.
(10) If the requirements of the above paragraph (9) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
(11) The occurrence of MYRIX's default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required. If MYRIX is in default of delivery, the customer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. MYRIX reserves the right to prove that the customer has incurred no damage at all or only a significantly lower damage than the above lump sum.
(12) Other rights of the customer as well as the statutory rights of MYRIX, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
9. reservation of title
(1) MYRIX shall retain title to the purchased item until full payment of all present and future claims arising from the delivery contract and an ongoing business relationship (secured claims).
(2) Tools, including those for articles protected for customers, shall remain the sole property of MYRIX, even if cost contributions have been made and tool cost shares have been paid or costs have been offset in the article price. There shall be no claim to the tools even upon termination of the cooperation.
(3) In the event of conduct in breach of contract, in particular default of payment, MYRIX shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the customer does not pay the purchase price due, MYRIX may only assert these rights if the customer has previously been set a reasonable deadline for payment without success or if such a deadline is dispensable under the statutory provisions.
(4) After taking back the purchased item, MYRIX shall be entitled to realize it; the realization proceeds shall be set off against the customer's liabilities - less reasonable realization costs.
(5) The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water damage and theft at replacement value.
(6) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. In the event of seizures or other interventions by third parties, the customer shall notify MYRIX immediately in writing so that MYRIX can bring an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse MYRIX for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, the customer shall be liable for the loss incurred by MYRIX.
(7) The customer shall be entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to MYRIX all claims in the amount of the final invoice amount (including VAT) of MYRIX's claim accruing to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. MYRIX accepts the assignment. The customer shall remain authorized to collect this claim even after the assignment. MYRIX's authority to collect the claim itself shall remain unaffected by this.
(8) However, MYRIX undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, MYRIX may demand that the customer informs MYRIX of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(9) The processing or transformation of the purchased item by the customer shall always be carried out for MYRIX. If the purchased item is processed with other items not belonging to MYRIX, MYRIX shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title. If the purchased item is inseparably mixed with other items not belonging to MYRIX, MYRIX shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer co-ownership to MYRIX on a pro rata basis. The customer shall keep the sole ownership or co-ownership thus created for MYRIX.
(10) The customer shall also assign to MYRIX the claims to secure MYRIX's claims against him which arise against a third party through the connection of the purchased item with a property.
(11) MYRIX undertakes to release the securities to which MYRIX is entitled at the customer's request to the extent that the realizable value of MYRIX's securities exceeds the claims to be secured by more than 10%; MYRIX shall be responsible for selecting the securities to be released.
10. assignment
(1) The assignment of any claims of the customer against MYRIX arising from business relations shall require the written consent of MYRIX in order to be effective, which MYRIX may not unreasonably refuse if the customer has a legitimate interest.
11. liability for defects and returns
(1) The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB) shall remain unaffected.
(2) The basis of MYRIX's liability for defects shall primarily be the agreement reached on the quality of the goods. The product descriptions (including those of the manufacturer) designated as such, which were provided to the customer prior to his order or included in the contract in the same way as these GTC, shall be deemed to be an agreement on the quality of the goods. Customary and technically unavoidable tolerances in color, quality, material, weight and other designs, deviations between proofs and print runs do not constitute a defect and are therefore no reason for complaints on the part of the customer.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). However, MYRIX shall not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The customer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (Sections 377, 381 HGB). If a defect becomes apparent during the inspection or later, MYRIX shall be notified thereof in writing without delay. The notification shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer shall notify MYRIX in writing of obvious defects (including wrong and short delivery) within two weeks of delivery, whereby the timely dispatch of the notification shall also be sufficient to meet the deadline. If the customer fails to properly inspect the goods and/or report defects, MYRIX shall not be liable for the unreported defect.
(5) Goods that are the subject of a complaint may not be opened unless this is necessary to fulfill the inspection obligation. If the goods complained about are nevertheless opened, the complaint shall be deemed invalid. Parcels sent to MYRIX freight collect without prior agreement will be refused.
(6) If the delivered item is defective, the customer may initially demand, at his discretion, either rectification of the defect (repair) or delivery of a defect-free item (replacement delivery) as subsequent performance. If the customer does not declare which of the two rights he chooses, MYRIX may set him a reasonable deadline for this. If the customer does not make the choice within the deadline, the right to choose shall pass to MYRIX upon expiry of the deadline.
(7) MYRIX shall be entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(8) The customer shall give MYRIX the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to MYRIX in accordance with the statutory provisions.
(9) The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), shall be borne by MYRIX if a defect actually exists. However, if the customer's request to remedy a defect turns out to be unjustified, MYRIX may demand reimbursement of the costs incurred from the customer.
(10) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer shall have the right to remedy the defect himself and to demand compensation from MYRIX for the expenses objectively required for this purpose. MYRIX shall be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy shall not apply if MYRIX would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(11) Claims of the customer for damages or compensation for futile expenses shall only exist in accordance with the following Section 13 and are otherwise excluded.
(12) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be 12 months from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(13) The processing of a notice of defect by the customer by MYRIX shall not constitute an acknowledgement of the defect. The processing of a notice of defect shall merely lead to the suspension of the limitation period, provided that the statutory requirements for this are met. This shall not result in a recommencement of the limitation period. This shall also apply if MYRIX undertakes subsequent performance (rectification of defects or replacement delivery) in response to the customer's notification of defects. A rectification of defects can only affect the limitation period of the defect triggering the rectification and any new defects arising in the course of the rectification. If the goods are the subject of a consumer goods purchase, the customer's rights in accordance with §§ 478, 479 BGB remain unaffected, provided that the customer has fulfilled the inspection and complaint obligations incumbent upon him in accordance with § 377 HGB.
(14) The above limitation periods of the sales law shall also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the customer's claims for damages in accordance with clause 13.
12. total liability
(1) Unless otherwise provided for in these GTC including the following provisions, MYRIX shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) MYRIX shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of simple negligence, MYRIX shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, MYRIX's liability shall be limited to compensation for foreseeable, typically occurring damages.
(3) The limitations of liability resulting from paragraph 2 shall not apply if MYRIX has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The same shall apply to claims of the customer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the customer may only withdraw from or terminate the contract if MYRIX is responsible for the breach of duty. A free right of termination of the customer (in particular pursuant to Sections 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
13. data protection
(1) In accordance with § 28 BDSG, MYRIX points out that the data required for processing will be stored on data carriers.
14 Choice of law, place of jurisdiction, final provisions
(1) The place of performance for all obligations arising from the contractual relationship is Karlsruhe.
(2) The place of jurisdiction for all legal disputes arising from the contractual relationship as well as its creation and effectiveness shall be Karlsruhe - Germany. However, MYRIX shall be entitled to sue the customer at its registered office.
(3) The entire contractual relationship is subject exclusively to the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(4) The conditions and effects of the retention of title in accordance with clause 10. are subject to the law at the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
Status: December 15, 2016