§ 2 Offer and Conclusion of Contract

Our offers and list prices are non-binding. Orders shall only be deemed accepted by us once our written confirmation has been provided. We reserve the right to make technical changes as well as changes in shape and colour to the extent reasonable.

By placing an order, the customer bindingly declares that we are to provide the ordered delivery or service.

Our declarations of acceptance require written form to be legally effective. The same applies to supplements, amendments and collateral agreements.

We reserve title and copyright to illustrations, drawings, calculations and other documents. These may not be made accessible to third parties. This applies in particular to written documents designated as confidential; the customer requires our express written consent before passing such documents on to third parties.

The conclusion of a contract with a business customer is subject to the condition that we ourselves are supplied correctly and on time by our suppliers. This shall only apply provided that the failure to deliver is not our fault, in particular where we have entered into a congruent covering transaction with our suppliers. The customer shall be informed without undue delay of the unavailability of the delivery or service. If the customer has already rendered consideration, it will be refunded promptly.

We shall only be liable for damage to or loss of templates and samples entrusted to us in cases of gross negligence or intent. This limitation of liability also applies to our employees, staff, representatives and vicarious agents. Production tools such as printing data, drawings, 3D animations and the like will be charged on a pro-rata basis and remain our property.

§ 3 Delivery and Management of Order-Related Data

Unless otherwise agreed in writing, we carry out all orders on the basis of the printing data provided to us by the customer.

The customer must transmit this printing data to us, at its own cost and risk, in the file formats specified on our website or in our order forms. The customer alone is responsible for the completeness and accuracy of the data provided to us.

The customer is obliged to provide us with the relevant data free of harmful software; for this purpose, the customer must use up-to-date protective software. Otherwise, the customer shall indemnify us for any resulting damage.

Data is archived free of charge until the order has been duly completed.

At the customer’s express request, we offer, for follow-up orders, an extension of the archiving period of up to a maximum of one year from completion of the order. The fee for this is determined by our current price list.

We only check data transmitted to us directly, or via third parties commissioned by the customer, for obvious errors.

If we retain the customer’s printing data beyond the aforementioned point in time in accordance with the contract, the customer must pay the fee provided for this purpose under our current price list for any further use of this archived data – in particular its preparation for further processing and the forwarding of this data or of documents and designs produced from it.

If data archived by agreement is lost or damaged while in our possession, we shall only be liable in accordance with §§ 4 and 7 of these General Terms and Conditions.

§ 4 Defects and Warranty

The following applies with regard to the existence of defects:

Insignificant deviations in colour, quality, etc. do not constitute defects.

For goods manufactured specifically for the customer, excess or short deliveries of up to 5% of the ordered quantity are permissible; the quantity actually delivered will be invoiced.

Graphic designs may, depending on the motif, affect the colour of light or the homogeneity of illumination. Adverse effects on light distribution and colour of light caused by the motif shall not be recognised as a defect, provided this cannot be prevented for technological reasons. We reserve the right to make technically necessary changes to system components where required by the order.

Depending on the material and printing process used, technologically related colour deviations may occur in the printing processes applied; these shall not be recognised as a defect. We will match colour outputs of reproduced full colours in digital printing as closely as possible to the customer’s specifications.

If the customer waives a professional data check and the creation of a proportion sketch for approval, subsequent complaints regarding colour and proportion cannot be accepted.

The following applies to our samples and specimens (hereinafter “samples”): these are frequently produced under conditions that differ from those prevailing in the subsequent production process. The characteristics of our samples are therefore not to be regarded as the agreed quality within the meaning of section 434 (1) sentence 3 of the German Civil Code (BGB); rather, the relevant technical standards and any quality expressly agreed in the contract shall be decisive.

Where the customer is a business customer, its warranty rights are conditional on it having duly complied with its inspection and notification obligations under section 377 of the German Commercial Code (HGB). For consumers, the statutory inspection and notification rules apply.

To the extent that a defect in the goods for which we are responsible exists, we are entitled, at our discretion, to remedy the defect or to deliver replacement goods. In the case of remedying the defect, we shall bear all expenses necessary for this purpose, in particular material, transport and labour costs, provided these are not increased by the goods having been taken to a place other than the place of performance.

If the remedy of the defect or the replacement delivery fails, the customer may, at its discretion, demand rescission of the contract or a corresponding reduction of the purchase price.

We shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence. Where no intentional breach of contract is involved, liability for damages shall be limited to the foreseeable damage typically arising.

We shall likewise be liable in accordance with the statutory provisions where we culpably breach a material contractual obligation; in this case, however, our liability shall be limited to the foreseeable damage typical for this type of contract.

Liability for culpable injury to life, body or health, as well as mandatory liability under the German Product Liability Act (Produkthaftungsgesetz), remain unaffected.

Except as otherwise provided above, liability is excluded.

The limitation period for claims for defects is one year from the passing of risk for business customers. For consumers, the statutory limitation periods apply (sections 438, 445b, 475e BGB).

§ 5 Prices and Terms of Payment

Our price calculation is based on the price lists applicable at the time of conclusion of the contract, together with any supplements thereto, unless expressly agreed otherwise. Unless otherwise agreed, our prices are quoted ex the relevant place of performance pursuant to § 6 (1) of these General Terms and Conditions, plus transport, packaging, insurance, cash-on-delivery fees or other incidental costs, in EUR.

Prices in order confirmations apply exclusively to the dimensions and specifications stated therein. In the event of deviations from the order, changes to the execution, or additional services caused by the customer, we are entitled to invoice reasonable additional charges.

We reserve the right to adjust our prices appropriately if cost reductions or increases occur after conclusion of the contract, in particular due to collective wage agreements or increases in material prices; we will provide evidence of this to the customer upon request.

Statutory VAT is not included in our prices and will be shown separately at the statutory rate.

Any cash discount (Skonto) requires a special written agreement.

As a rule, the purchase price is payable net (without deduction) in advance. Payment on invoice is only possible following a prior separate agreement or a positive credit assessment of the customer; in this case, our invoices are due for payment without deduction within 8 days of the invoice date.

If the customer is in default of payment, we are entitled to charge default interest at a rate of 8 percentage points above the applicable base rate (Basiszinssatz, section 247 BGB) per annum. If we are able to prove higher default damages, we are entitled to assert these; the customer remains free to prove that we incurred no damage, or a significantly lower amount of damage, as a result of the default.

We only accept cheques and bills of exchange on the basis of a special written agreement and on account of payment.

The customer is only entitled to set off claims that are undisputed, have been recognised by us, or have been finally and bindingly established by a court; the customer likewise has no right of retention on account of disputed counterclaims. Where the customer is a consumer, its statutory right of retention in respect of claims arising from the same contractual relationship remains unaffected.

The timeliness of a payment is determined by the date on which it is received by us.

We are entitled, irrespective of any instructions to the contrary given by the customer, to first offset payments against the customer’s older debts; we will inform the customer without delay of the manner in which the payment has been allocated. Where costs and interest have already accrued, we shall apply the payment first to costs, then to interest, and lastly to the principal claim.

§ 6 Delivery, Shipping, Packaging and Passing of Risk

Unless otherwise agreed in an individual case, the place of performance for deliveries is our registered office at 22419 Hamburg. For products manufactured at our Bad Bramstedt (24576) site, the place of performance shall instead be Bad Bramstedt.

Where the customer is a business customer, risk passes to it as soon as the goods leave the relevant plant or are made available there to the customer or to a third party commissioned by the customer (including a commissioned carrier); this also applies where delivery “free domicile” (Frei Haus) has been agreed. Where the customer is a consumer, risk passes to it, even in the case of an agreed sale by dispatch, only upon handover of the goods.

If dispatch or collection of the goods is delayed or becomes impossible for a reason attributable to the customer, risk passes to the customer upon notification that the goods are ready for dispatch.

Goods duly notified as ready for dispatch must be called for without delay; otherwise, we are entitled, at our discretion, to dispatch them at the customer’s cost and risk or to store them at our discretion and invoice them immediately.

In the absence of specific instructions from the customer, we shall determine the carrier, shipping route and means of transport, without being obliged to choose the cheapest means of transport.

We will only arrange special packaging protection, transport and handling aids, or transport insurance, at the customer’s express written request; the resulting costs shall be borne by the customer.

The customer must ensure that the ordered goods can be accepted at the delivery address during the usual delivery times. Otherwise, in addition to further shipping costs, the customer shall bear the costs of the additional processing effort thereby incurred on our part, which is agreed at a flat rate of EUR 10; the customer remains free to prove that the loss incurred was lower.

In the event of visible transport damage, the customer must, upon receipt of the goods, have the damage recorded in such a way that claims for damages against the carrier remain possible. If the customer fails to adequately comply with this obligation, it shall bear the resulting consequences alone.

The customer must ensure that it, or the recipient of the goods, satisfies itself without delay after delivery that the goods are in proper condition. As against business customers, the statutory inspection and notification obligations remain unaffected.

Delivery dates promised are approximate dates only. In connection with the delivery and/or installation of our frame systems, we accept no liability for structural stability, load transfer, fixing or substrate; it is the customer’s sole responsibility to verify that the technical requirements for installation of the ordered product are met.

Where the failure to meet deadlines or delivery dates is due to force majeure (e.g. war, strike, lock-out, natural disasters, disruptions in the supply of raw materials, materials or energy, operational, production or transport disruptions, unforeseeable transport problems, machine defects for which we are not responsible, and similar events, including where these occur at our suppliers, their sub-suppliers or our subcontractors), we are entitled to postpone delivery or performance for a reasonable period corresponding to the duration of the hindrance, or to withdraw from the contract in whole or in part with respect to the part not yet performed.

We shall be liable in accordance with the statutory provisions where the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible, including such breaches by our representatives and vicarious agents. In other cases of delay in delivery, our liability for damages in addition to performance is limited to 5%, and for damages in lieu of performance to 10%, of the value of the affected delivery; further claims by the customer are excluded. This limitation of liability does not apply in cases of injury to life, body or health. This is not associated with any shift in the burden of proof to the customer’s disadvantage.

Non-binding delivery dates and periods are always subject to the timely clarification of all details of the order, in particular of all technical questions, and to the timely provision by the customer of the documents and data required by us.

We are entitled to make partial deliveries and render partial performance at any time. The customer may not derive any rights with respect to the remaining partial deliveries or performance from a delay in partial deliveries or performance.

We accept no liability with regard to the timely transport, duration of transport or arrival of the goods; our statements in this respect are made to the best of our knowledge but without obligation.

The limitation of liability under § 7 of these General Terms and Conditions applies in addition.

§ 7 Aggregate Liability and Limitations of Liability

Any further liability for damages beyond that provided for in § 4 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty, or tortious claims for compensation for property damage pursuant to section 823 of the German Civil Code (BGB).

The limitation under paragraph 1 also applies where the customer claims compensation for futile expenses instead of a claim for damages in lieu of performance.

To the extent our liability for damages is excluded or limited, this shall also apply to the personal liability of our employees, staff, representatives and vicarious agents.

Claims of the customer for damages or reimbursement of expenses, on whatever legal grounds, in particular for breach of duties arising from an obligation and from tort, are excluded.

This shall not apply in cases where we have assumed a guarantee or a procurement risk.

Nor shall this apply where claims are asserted against us under the Product Liability Act, in cases of intentional or grossly negligent conduct on our part or on the part of our vicarious agents, in the event of injury to life, body or health, or in the event of breach of material contractual obligations.

The claim for damages for breach of material contractual obligations is, however, limited to the foreseeable damage typical for this type of contract, unless intent or gross negligence exists or liability is based on injury to life, body or health.

§ 8 Advertising, Copyright, Third-Party Rights

We are entitled to retain specimen copies of orders as quality samples and to use these, in anonymised form, for advertising purposes.

Our deliveries and services do not include the transfer of copyright. We reserve all proprietary rights and copyright in our graphic designs, image and word marks, layouts, etc. The transfer of these rights requires a separate written agreement.

The customer must ensure that the execution of its order does not infringe any third-party rights, in particular copyright. Otherwise, it shall indemnify us against any related third-party claims.

§ 9 Retention of Title

We retain title to the goods until receipt of all payments arising from the business relationship with the customer. In the event of conduct by the customer in breach of contract, in particular default of payment, we are entitled to repossess the goods. Repossession of the goods does not constitute withdrawal from the contract unless we expressly declare this in writing. Seizure of the goods by us shall always constitute withdrawal from the contract. Following repossession, we are entitled to realise the goods; the proceeds of realisation shall be set off against the customer’s liabilities, less reasonable realisation costs.

The customer is obliged to handle the goods with care; in particular, it must insure them at its own expense against fire, water and theft damage at replacement value. Any necessary maintenance and inspection work must be carried out by the customer in good time and at its own expense.

In the event of seizure or other third-party interference, the customer must notify us in writing without delay, so that we may bring an action pursuant to section 771 of the German Code of Civil Procedure (ZPO). To the extent the third party is unable to reimburse us for the judicial and extrajudicial costs of such an action, the customer shall be liable for the resulting loss to us.

The customer is entitled to resell the goods in the ordinary course of business; it hereby already assigns to us all claims, in the amount of the final invoice amount (including VAT), arising from the resale against its customers or third parties, irrespective of whether the goods are resold unprocessed or after processing. The customer remains authorised to collect this claim even after the assignment; our right to collect the claim ourselves remains unaffected. We undertake, however, not to collect the claim as long as the customer duly meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been filed for the opening of insolvency proceedings and no suspension of payments exists. If any of these circumstances occurs, we may require the customer to disclose to us the assigned claims and their debtors, to provide all information required for collection, to hand over the associated documents, and to notify the debtors of the assignment.

Processing or transformation of the goods by the customer shall always be carried out on our behalf. If the goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods to the other processed items at the time of processing. In all other respects, the item created by processing shall be subject to the same provisions as the goods delivered subject to retention of title.

If the goods are inseparably mixed with other items not belonging to us, we shall acquire ownership of the new item in proportion to the value of the goods to the other mixed items at the time of mixing. If the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro-rata basis; the customer shall keep the resulting sole or co-ownership in safekeeping for us.

To secure our claims against the customer, the customer also assigns to us the claims arising from the connection of the goods with a plot of land against a third party.

We undertake to release the security interests to which we are entitled, at the customer’s request, to the extent that the realisable value of our security exceeds the claims to be secured by more than 35%. The selection of the security interests to be released is at our discretion.

§ 10 Right of Withdrawal

Where the customer is a consumer within the meaning of section 355 of the German Civil Code (BGB), it may withdraw from its contractual declaration within 14 days without giving reasons, in text form (e.g. letter, fax, email) or – if the goods have been made available to it before expiry of the period – by returning the goods. The period begins upon receipt of this notice in text form, but not before receipt of the goods by the recipient (in the case of the recurring delivery of similar goods, not before receipt of the first partial delivery) and not before fulfilment of our information obligations under Article 246 § 2 in conjunction with § 1 (1) and (2) of the Introductory Act to the German Civil Code (EGBGB), as well as our obligations under section 312e (1) sentence 1 BGB in conjunction with Article 246 § 3 EGBGB. Timely dispatch of the notice of withdrawal or of the goods shall be sufficient to meet the deadline. The notice of withdrawal must be sent to:

Kleinhempel GmbH, Tarpenring 17, 22419 Hamburg, Germany, Phone: +49 40 514 005 0, Email: info@kleinhempel.de

In the event of an effective withdrawal, the performance received by both parties must be returned and any benefits derived (e.g. interest) surrendered. If the customer is unable to return the performance received, in whole or in part, or is only able to return it in a deteriorated condition, the customer must, where applicable, compensate us for the corresponding loss in value. In the case of goods provided, this shall not apply where the deterioration of the goods is exclusively attributable to their inspection – to the extent this would have been possible, for example, in a retail shop. In addition, the customer can avoid the obligation to pay compensation for deterioration resulting from the intended use of the goods by not using the goods as if they were its own property and by refraining from anything that would impair their value. Goods that can be returned by parcel post must be returned at our risk. The customer shall bear the cost of the return if the goods delivered correspond to those ordered and if the price of the goods to be returned does not exceed EUR 40, or if, at a higher price, the customer has not yet provided the consideration or an agreed instalment payment at the time of withdrawal. Otherwise, the return shall be free of charge for the customer. Goods that cannot be returned by parcel post will be collected from the customer. Obligations to refund payments must be fulfilled within 30 days. For the customer, this period begins with the dispatch of its notice of withdrawal or of the goods; for us, it begins upon receipt thereof.

In the case of a service, the right of withdrawal expires prematurely if the contract has been fully performed by both the customer and us at the customer’s express request before the customer has exercised its right of withdrawal.

End of the notice on the right of withdrawal.

The right of withdrawal does not apply to distance contracts for the supply of goods that are manufactured to customer specifications or are clearly tailored to personal needs, or that are not suitable for return due to their nature.

§ 11 Governing Law, Place of Jurisdiction, Place of Performance

Where the customer is a merchant, the exclusive place of jurisdiction for all disputes arising from this business relationship is Hamburg. The same applies if the customer has no general place of jurisdiction in Germany. We are also entitled to sue the customer at its place of residence. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected.

The law of the Federal Republic of Germany applies. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.

Should individual provisions of these General Terms and Conditions be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.