1.1
TRIK Produktionsmanagement GmbH (hereinafter referred to as “TRIK”) offers its customers creative complete solutions in the field of marketing. This includes, in particular, the development, design and procurement of advertising material. TRIK exclusively supplies commercial customers (no end customers/consumers).
1.2
Subject to relevant legal regulations, these General Terms and Conditions (GTC) conclusively regulate the legal relationship between TRIK and its customers. The customer also acknowledges the following provisions as binding for future transactions with TRIK.
1.3
Provisions of the customer deviating from these regulations are irrelevant; they are hereby expressly contradicted. There are no agreements going beyond these regulations. Such agreements must be made in writing in order to be validly included.
1.4
TRIK reserves the right to change these provisions and/or individual parts of these provisions. If the customer does not object to the amended provisions within 14 days of notification, the amended provisions shall be deemed to have been agreed. The current version of the GTC shall be authoritative.
1.5
The customer is aware that certain products and services may be subject to special import/export controls and/or restrictions. It is hereby agreed that the prior examination and compliance with such provisions is the sole responsibility of the customer. If special documents may be required for the import/export of certain products and services, their procurement is generally the responsibility of the customer. The customer expressly agrees that a product or service – whether directly or indirectly, separately or as part of a system – may not be imported/exported or resold unless the customer first complies with all regulations and applicable legal regulations at his own expense and, for example, has also obtained the necessary consent from a competent authority and/or other (governmental) body. If TRIK obtains this consent or the necessary evidence for the customer, the customer acknowledges that the costs incurred for this shall be borne by the customer. The same applies if TRIK obtains special documents for the customer for the Import/export of certain products and services. If the customer requires a certificate of origin, he must inform TRIK of this already when placing the order; TRIK is entitled to charge the customer a lump sum of € 30 per certificate of origin for the additional expenses incurred in this respect.
2. Conclusion of contract
2.1
The products and services offered by TRIK constitute non-binding invitations to submit an offer by the customer. In this respect, the specifications and detailed designs of the products and services offered by TRIK are non-binding. A declaration of intent of the customer aimed at the conclusion of a contract always represents an offer. The customer is bound by this if the products and services commissioned 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 within 14 days of submitting its offer and has not yet begun to execute the order, the customer is no longer bound by its offer.
2.2
A confirmation by TRIK of the receipt of an order/offer does not constitute a declaration of acceptance.
2.3
Declarations of legal intent made by TRIK in the course of the conclusion of the contract are always subject to correct and timely self-supply by its suppliers. This does not apply if TRIK is responsible for any incorrect or non-delivery. If the execution of a contract is impossible for TRIK – for example due to the unavailability of a particular product – TRIK will inform the customer immediately. TRIK will immediately reimburse any – partial or full – consideration that may have already been provided.
2.4
Advance services (concepts, drafts, etc.) provided at the customer’s request within the framework of an imminent contractual relationship may be invoiced to the customer, taking into account the respective time required, even if a contract is not subsequently concluded. This does not apply if TRIK is responsible for the non-conclusion.
If TRIK provides the customer with advance services of the aforementioned kind, the customer must release the resulting work results after examination prior to the further execution of the contract. The inspection period is 14 days from receipt of the work results by the customer. After expiry of the inspection period, the release shall be deemed to have been declared.
2.5
Unless the customer explicitly commissions TRIK, TRIK will not pay any disposal fees such as the German “Green Point” (“Der Grüne Punkt”). If the customer so wishes, this must be commissioned. TRIK informs the customer of the costs in advance and also takes over the execution after commissioning.
2.6
Price information provided by TRIK is exclusive of 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) Retention of Title
3.1
Immediately after conclusion of the contract, TRIK is entitled to demand the expected final invoice amount or a lower amount at the discretion of TRIK in advance and to start manufacturing/commissioning the contractual products and services only after receipt of payment. TRIK makes use of this right in particular in relation to new customers. In this context, TRIK points out that the contractual articles/advertising material are products to be manufactured individually for the respective customer, with regard to which TRIK cannot regularly provide advance performance. TRIK does not store the data, films, tools, screens and embroidery cards, etc. required for the execution of an order after completion of the order, unless otherwise agreed.
3.2
TRIK is entitled to invoice the agreed service electronically (e.g., by e-mail).
3.3
If in accordance with the contract, defined partial services are to be provided, ¬such as the creation of concepts or the like, partial payments on the total remuneration may become due after their respective provision in accordance with the share of the partial delivery in the total delivery contracted. TRIK is entitled to demand partial payments without prejudice to section 3.1.
3.4
Advance services of the customer in accordance with sections 3.1 and 3.2 will be offset against the final invoice. At the time of the transfer of risk, a (remaining) amount still to be paid by the customer is due for immediate payment and without deduction. The customer shall be in default of payment no later than 30 days thereafter. In the event of default, the customer shall reimburse TRIK for the resulting damage caused by default together with interest in the amount of 8 percentage points above the respective base interest rate.
3.5
All products and services delivered to the customer shall remain the property of TRIK until full payment of the total remuneration. The customer is liable for such products and services owned by TRIK. They may not be reproduced or used without the express approval of TRIK.
3.6
The customer is entitled to consume the products and services delivered to him or to sell them in the ordinary course of business. TRIK may revoke this consumption and sales authorization if the customer is in default with his payment obligations. The customer hereby assigns to TRIK in full as security all claims that he acquires against third parties through sale as well as claims from insurance benefits. The customer is revocably authorized to collect these claims. The customer is revocably authorized to collect these claims. TRIK will only issue the revocation and collect assigned claims only if the customer is in default with his payment obligations, he has stopped his payments or an application for the opening of insolvency proceedings has been filed.
3.7
Any warranty claims do not entitle the customer to refuse the consideration, unless TRIK has acknowledged the customer’s notice of defects in writing.
3.8
In case of a delay in payment, TRIK will charge a reminder fee of EUR 40.
4. Copyrights / Intellectual Property Rights
4.1
All rights to services provided by TRIK to customers within the framework of any imminent contractual relationship, such as the creation of concepts, drafts, layouts, proposal presentations, etc., are exclusively owned by TRIK with regard to (intellectual property rights) manifesting themselves in these advance services, such as copyright/design/trademark rights, etc. TRIK does not grant the customer any rights of use and/or exploitation of any kind. This also applies insofar as the services were created with the assistance and specifications of the customer. In such cases, the customer may be regarded as co-author, but irrevocably waives against TRIK the assertion of rights of use, exploitation and/or other rights under the Copyright Act.
4.2
By placing the order, the customer declares that the material provided to TRIK for the execution of the order is free of third-party rights, respectively that all rights of use to it have been granted to him by the respective rights holder without restriction. In this respect, the customer must clarify all rights for the material provided to TRIK himself before placing the order. This applies in particular to certain logos, designs and other files for the respective order.
4.3
With the execution of the order and acceptance, TRIK grants the customer a simple right of use and/or exploitation limited to the specific order to (industrial property rights) such as copyrights/design/trademark rights, etc., which manifest themselves in graphics, layouts, motifs, etc. Any use for other purposes requires a separate agreement.
5. Shipping, Delivery, Transfer of Risk
5.1
If the customer wishes a delivery, this will be made against prepayment, unless the parties have agreed on another payment method.
The same applies to the delivery of samples to be sent to the customer at the request of the customer.
5.2
Any shipping and packaging costs etc. incurred shall be borne by the customer.
5.3
TRIK is entitled to increase prices for the products and services to be provided by it in accordance with the contract accordingly if there are more than six weeks between the conclusion of the contract and the agreed delivery date and if wages, material costs or market cost prices increase by more than 10 percent during this period or if the exchange rates existing for the currency of the country of production deteriorate by more than 10 percent.
5.4
TRIK is responsible for selecting the company to be contracted for the shipment. This selection is made after careful and conscientious examination in the interest of the customer.
5.5
With the handover of the goods to the company contracted with their shipment, TRIK fulfills the delivery obligation incumbent upon it. At the time of handover, the risk for all damage to the goods shall pass to the customer.
6. Warranty
6.1
TRIK fulfils the contractual obligations incumbent upon it with all due care and in the interest of the customer. The customer is aware that for production reasons there may be excess or short deliveries of up to 10 percent. Such excess or short deliveries do not constitute a defect that triggers warranty rights. Even a mere slight reduction in usability does not entitle the customer to assert any warranty rights. In the event of a short delivery going beyond this, TRIK will issue the customer with a corresponding credit note. A post-production or similar is excluded. In the event of an additional delivery going beyond this, this will be charged to the customer accordingly.
6.2
TRIK warrants that the products and services provided by it have the agreed quality at the time of transfer of risk or – insofar as an agreement on the quality has not been made – that the products and services are suitable for the use presumed under the contract or they are suitable for normal use and have a quality that is customary for products and services of the same type and that the customer can expect according to the type of product or service. TRIK does not assume any further warranty. TRIK also does not provide any guarantees of any kind.
6.3
Unless otherwise agreed, the products supplied by TRIK are products of medium type and quality from industrial mass production. The quality check is carried out according to the AQL (Acceptable Quality Level) sample test. This is an internationally accepted method that is used to estimate on the basis of a delivery sample whether the total delivery meets the agreed specifications. The sample test is carried out according to the AQL tables of the International Organization for Standardization (ISO) 2859-1 standard. Unless otherwise agreed, an error level of 2.5 (major defects) and 4 (minor defects) applies: If the error rate / the proportion of rejects is below the AQL, the quality of the products is to be accepted and does not entitle to assert any warranty rights. Errors occurring within the agreed level are permissible and must therefore be tolerated.
For more information about the AQL sample check applicable to Trik deliveries, see https://www.trik.de/show/docs/AQL_Infoblatt_en.pdf
6.4
In the case of products with soft fabrics and material-like materials, minor deviations in length, weight, width, fiber composition and color due to production technology do not entitle the customer to assert any warranty rights. Fabrics are not absolutely dimensionally stable. Therefore, there may be deviations in the implementation of motifs during embroidery or weaving. The yarn colors, especially for shorter runs, will only approximate the colors of the HKS and/or Pantone color system. Minor color deviations are production-related unavoidable.
In the case of products that are manufactured or refined by hand, different forms of the product or refinement can occur within the batch. Such minor deviations due to manual work do not constitute a defect that triggers warranty rights. The same applies to deviations between pre-samples and mass production.
6.5
In the case of products that are to be provided with laser markings, in particular laser engravings, at the customer’s request, certain contrast and/or color fluctuations may also occur within series production due to product-related circumstances such as the material composition of natural products.
For printing, TRIK and its fulfillment agents use different printing techniques depending on the requirements and at their own discretion. Customary and technically unavoidable tolerances in color, quality, material, lightfastness, variability and deviation of the material and printing inks as well as the weight do not entitle the customer to assert any warranty rights. The same applies to color deviations between the original and reproductions as well as between press-proofs and production runs.
In particular,
a) when using the transfer printing process, half-tones can be created, and
b) when using the sublimation printing process, blurring may occur.
Insofar as the customer specifies his color wishes according to the Pantone color system, minor deviations of up to ± 1 color tone (in the case of coloring of fabrics up to ± 2 shades) may also occur for technical reasons, depending on the printing process and material.
The above-mentioned color fluctuations or engraving contrasts do not represent a defect that triggers warranty rights.
Ceramic, porcelain and glass printing inks can only be produced approximately to the color tones of the “Pantone” or “HKS” color systems. Due to the burn-in process, color deviations may occur.
Technical information porcelain and hydro-glaze:
Porcelain is a living material that can change slightly in the manufacturing and firing process. In the production of the molds, in the further refinement by printing, color glaze and logo engraving, a large part of the production steps are done by hand. Please note that the associated minor tolerances and deviations are ‘normal’ due to production and are, therefore, unavoidable.
In ceramics, hydro-glaze makes it possible to cover almost the entire HKS or Pantone spectrum, including gold or silver. Hydro-glaze is dishwasher safe, but only partially scratch-resistant, which means that you can scratch the surface with sharp-edged objects such as a knife or screwdriver.
When translating two-dimensional templates into three-dimensional advertising media, deviations from the layout often occur, which can only be noticed or adapted in a correction phase. If a correction phase is waived, such deviations must be accepted and do not entitle the customer to assert any warranty rights.
Unless otherwise agreed, TRIK will be happy to prepare preliminary samples by arrangement and at a charge. Changes to the preliminary sample will be charged according to effort and delay the delivery date. If the production of the entire run does not take place after receipt of the preliminary sample, all tool costs incurred to date will be invoiced.
n the absence of a preliminary sample (e.g., due to time constraints) and a release by means of digital illustrations of a sample (electronic release), a complaint due to color deviation of colored parts or printing cannot be recognized.
Without written customer approval of a physical preliminary sample, TRIK assumes no warranty with regard to material quality, basic color, logo status and logo reproduction. Samples cannot be returned for administrative reasons.
6.6
TRIK makes every effort to process the contract as quickly as possible, but does not assume any warranty for specific delivery periods. Anything else shall only apply if TRIK has expressly guaranteed a specific delivery period in writing.
6.7
The customer is obliged to inspect the products and services immediately and with due care upon receipt. Any defects must be reported to TRIK immediately, but no later than 7 days after receipt. The same applies to such defects, which only become apparent at a later date. If the notification of a defect is omitted within the period of 7 days, the delivered goods shall be deemed to have been approved.
6.8
In the event of a defect for which TRIK is responsible, TRIK shall be free, at its discretion, to remedy the defect at its own expense (rectification) or to make a replacement delivery in exchange for the defective goods. If the remedy of defects fails twice, the customer may, at his discretion, withdraw from the contract or demand a reduction in the purchase price.
6.9
TRIK shall only bear the costs incurred in the course of rectification, in particular travel and transport costs, if the customer has not taken the products delivered to him to a place other than the place to which the products were first shipped. The costs of a replacement delivery shall be borne by TRIK. Unless otherwise agreed between the parties, the replacement delivery shall always be made to the place to which the products were first shipped.
6.10
Subject to express written consent, TRIK will not accept return shipments (returns) sent freight collect as a matter of principle. Notwithstanding this, TRIK will reimburse the customer for the costs incurred in the event of a justified return shipment, insofar as their amount may appear to be objectively justified from an objective point of view at the time of dispatch. In principle, TRIK does not object to return shipment costs at the lowest rate. Any return shipment must be agreed in advance between the parties.
7. Liability
7.1
TRIK shall only be liable for damages incurred by the customer in the event of intent and gross negligence.
7.2
Any liability is limited to the foreseeable, typically occurring damage. In particular, TRIK assumes no liability for circumstances that do not represent the actual purpose of the contract. TRIK shall also not be liable in case of slightly negligent violation of insignificant contractual obligations and/or non-significant secondary obligations arising from the contract. The liability of TRIK and its representatives/fulfillment agents for damages resulting from injury to the life, body or health of the customer is expressly excluded from the limitations of liability.
7.3
TRIK assumes no liability within the scope of the execution of the contract that the execution of the customer order does not violate legal provisions, in particular that no rights of third parties are violated or competition law regulations are affected. It is the customer’s responsibility to check in advance and ensure that the services and products commissioned from TRIK are legally harmless. In this respect, the customer shall fully indemnify TRIK against claims in this regard (section 1.5).
7.4
TRIK shall not be liable in the case of fulfillment agents and legal representatives for damages attributable to only slight negligence.
Any liability exists exclusively in relation to the customer as contractual partner. In no case are third parties uninvolved in the contract concluded between TRIK and the customer entitled to claim.
7.5
Claims against TRIK that are not based on intentional conduct attributable to TRIK shall become statute-barred within one year.
8. Reservation of Rights
8.1
TRIK reserves the right of ownership and copyright to all artistic works as well as the final designs of illustrations, drawings, articles and other documents. They may only be used by third parties with the express written consent of TRIK.
8.2
TRIK is entitled to use and depict articles created on behalf of the customer and the name of the customer for advertising purposes, as a reference or as a sample as well as to affix the name of TRIK in a suitable place.
9. Final Provisions
Should any provision of these GTC be or become invalid, the remaining provisions shall nevertheless apply. The parties undertake to replace the invalid provision with an agreement that comes as close as possible to the ineffective provision in terms of interest and significance. The same applies in the event that the provisions of this contract have a gap not intended by the parties.
The place of performance is Berlin. Berlin is agreed as the place of jurisdiction. German law shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
As on: 07/2023
