General Terms & Conditions
of Kandinsky Deutschland GmbH, Königsberger Str. 100, 40231 Düsseldorf, Germany, for the supply of goods and provision of services to companies

As at: 1. November 2008

1. General – scope

1.1 These Terms and Conditions (hereinafter: T&Cs) apply only to companies, legal entities under public law and special funds under public law within the sense of Section 310 of the German Civil Code.
1.2 The T&Cs apply for the entire business relationship between the client and KANDINSKY Deutschland GmbH (hereinafter: KANDINSKY).
1.3 The T&Cs are also considered agreed upon for all subsequent business transactions, even if KANDINSKY does not expressly refer to these. This applies in particular for newly placed orders within an existing business relationship, communicated change requirements or the extension of existing agreements.
1.4 Conflicting or deviating conditions of the client are only deemed recognised if this has been expressly confirmed by KANDINSKY in writing. Otherwise, KANDINSKY does not recognised any conflicting conditions of the client. This also applies if KANDINSKY unreservedly performs services while being aware of conflicting and/or deviating conditions of the client.
1.5 Individual agreements made in individual cases with the purchaser (including additional agreements, supplements and amendments) always take priority over these T&Cs. Written contract or our written confirmation is decisive for the contents of these types of agreements.1.6 Legally relevant declarations and notifications that must be submitted by the client to KANDINSKY following the conclusion of the agreement (e.g. setting of deadlines, defect notifications, declaration of withdrawal or reduction) need to be made in writing in order to be effective, unless stated otherwise in these T&Cs.

2. Quotations, conclusion of the agreement

2.1 Quotations by KANDINSKY contained in brochures, advertisements, Internet pages etc., including those relating to prices, are subject to change and non-binding. Unless stated otherwise in the quotation, individually prepared written quotations from KANDINSKY have a validity of 14 days from receipt of the quotation. The right of prior sale remains reserved. The cooperation of the client in KANDINSKY's performance of the order is considered as the client's acceptance of KANDINSKY's quotation.
2.2 Orders can only be made in writing or in text form. The order constitutes a binding offer. Acceptance by KANDINSKY only takes place if an order confirmation has been sent within two weeks, calculated from the date on which the order was received, or if the client is sent the ordered goods within this period. Otherwise, the offer is deemed refused. Receipt confirmations do not constitute order confirmations.
2.3 Subject to availability of merchandise.
2.4 Changes to the order once the agreement has been concluded are only effective if they are agreed upon in writing between KANDINSKY and the client or if they have been confirmed in writing by KANDINSKY.
2.5 KANDINSKY is entitled to refuse to perform services if, following the conclusion of the agreement, there is a justified concern that its right to counter-performance is jeopardised due to a lack of capability on the part of the client, in particular a deterioration of the client's financial circumstances. If the client is not willing, even after expiration of a reasonable period granted to it, to perform its counter-services concurrently against KANDINSKY's services or to provide a security, then KANDINSKY is entitled to withdraw from the agreement.
2.6 Only the information supplied by KANDINSKY in the order confirmation or other such information that KANDINSKY has supplied in the form of a separate confirmation represent the contractual quality of goods to be delivered. The goods descriptions, weight and/or quantity information, particularly in catalogues, brochures, on the Internet, in price lists and advertisements by KANDINSKY, are merely indications or approximate values. This information does not constitute binding quality information unless information on the quality has been expressly confirmed by KANDINSKY in writing.

3. Prices

3.1 Unless stated otherwise in the order confirmation, KANDINSKY's prices apply "ex-works" (Düsseldorf), excluding statutory VAT and packaging. The VAT is listed separately in the invoice, at the statutory rate applicable on the day of invoicing.
3.2 All price quotations and information outside of the order confirmation, in particular in catalogues, brochures, on the Internet, in price lists and advertisements by KANDINSKY are non-binding and are subject to modification by KANDINSKY at any time.
3.3 With agreements with an agreed delivery time of over four months, KANDINSKY is entitled to increase the prices according to any cost increases incurred as a result of supply agreements, labour agreements, exchange rate increases or material price increases. If the increase extends beyond 5% of the agreed purchase price, then the client has the right to withdraw from the agreement in accordance with Section 313, Part 3 of the German Civil Code. The client is not entitled to claim for damages in this case.

4. Order scope and performance, print motifs and printing technology

4.1 All samples for the print motifs required by the client (graphics, logos, text) must be sent via email to "daten@kandinsky.de" as digital files. The formates accepted by KANDINSKY are listed on the KANDINSKY website. Incoming data is checked by KANDINSKY for its suitability for printing. If the print motifs prove to be unsuitable for reasons not attributable to KANDINSKY, then KANDINSKY is released from its obligation to perform services until suitable print motifs are submitted.
4.2 Transferred data is only deemed received once receipt has been expressly confirmed by KANDINSKY in writing or in text form. This does not apply if KANDINSKY is responsible for the non-receipt or has wrongly refused to provide confirmation.
4.3 KANDINSKY reserves the right to carry out short or excess deliveries for production reasons, provided that the short or excess deliveries are reasonable for the client. A deviation from the unit quantity is deemed reasonable if it does not exceed 10%. In the event of a mixture of different items or sizes, a deviation of up to 15% per individual item and/or size is deemed reasonable, but no more than a 10% deviation in the unit quantity of the total order quantity. The client reserves the right to prove that a smaller short or excess delivery is reasonable in individual cases. In the event of an excess delivery, reimbursement must be provided for the actual delivered amount, up to a maximum of the reasonable delivered amount. In the event of a short delivery, the client must provide reimbursement for the actual delivered amount.
4.4 Depending on requirements, KANDINSKY uses different printing technologies (screen printing, transfer printing or sublimation printing). Line drawings (with uniform coloured areas) are depicted in screen print (standard printing process). Different processes are used for areas with different colour gradations (half-shades). Screens may be visible here (when using the transfer printing process) or slight blurring may occur (when using the sublimation printing process).
4.5 With longer, more intensive use of a printed object, the print may fade or rub off.
4.6 For colour definition, KANDINSKY uses only the "coated" palette from the Pantone colour charts. The client must specify its colour requirements based on the Pantone colour system. Due to the material being printed on, there may be minor deviations (+/- 1 shade). These do not constitute defects that entitle the client to a warranty claim.
4.7 If fabrics are dyed, then minor deviations (+/- 2 shades) may also occur here. These types of deviations also do not constitute defects that entitle the client to a warranty claim.
4.8 If textiles are produced, then minor deviations (+/- 1-2 cm) from the specified cutting table or production sample may also occur here. These types of deviations also do not constitute defects that entitle the client to a warranty claim.

5. Delivery and service deadlines

5.1 Binding delivery dates and deadlines must be specified and agreed upon as binding. In the event of non-binding or approximate delivery deadlines ("around", "approx.", "as possible", "intended" etc.), KANDINSKY will strive to meet these to the best of its ability.
5.2 If, for reasons not attributable to KANDINSKY, deliveries or services by suppliers to KANDINSKY are not carried out or are not carried out in time, or if events of force majeure occur, then KANDINSKY must inform the client of this immediately. KANDINSKY can postpone the delivery by the duration of non-availability or can withdraw completely from the agreement due to the part not yet fulfilled if KANDINSKY has complied with the aforementioned obligation to inform. In the event of withdrawal, KANDINSKY will reimburse any counter-services carried out by the client immediately.
5.3 Unless expressly agreed otherwise, shipping is uninsured, and is performed at the risk and expense of the client. KANDINSKY reserves the right to select the shipping method, the transport route and the means of transportation. On the express request of the client, the delivery can be covered by transportation insurance; the costs incurred must be borne by the client. The unit quantities, dimensions and weights determined by KANDINSKY for the ordered delivery are decisive.
5.4 KANDINSKY's compliance with the delivery obligation is subject to the client's timely and correct compliance with its obligations. The right to object to non-compliance with the agreement remains reserved.
5.5 KANDINSKY can provide the client with an electronic sample in the form of a digital "final artwork" for the ordered goods. If agreed upon separately, KANDINSKY will also prepare a physical manufacturing sample at an extra charge (resulting in an extension of the delivery time). For initial productions, KANDINSKY always expressly recommends having a physical manufacturing sample produced. The aforementioned samples are created based on the data and print motifs provided by the client. The production takes place once the sample has been checked and approved by the client, which should take place immediately following receipt, and ideally within 24 hours. Approved physical manufacturing samples constitute agreed quality. If this deviates from the order confirmation, then this is considered as changed. 
5.6 Delivery dates and deadlines apply from the date of approval by the client as perItem 
5.5; if approval is not required, then delivery dates and deadlines apply at the earliest from the point at which the print motifs are correctly received based on KANDINSKY's regulations. The client has a duty to cooperate in this regard, and to transfer the data based on KANDINSKY's regulations. These regulations can be found on KANDINSKY's website, and can be requested from KANDINSKY in advance. The transferred data is only considered as correct once it has been checked and confirmed in writing or in text form within a reasonable period of time by KANDINSKY, taking into account any existing product-specific restrictions and characteristics. This does not apply if KANDINSKY is responsible for the unsuitability of the data or has wrongly refused to provide confirmation.
5.7 The contents of any orders or instructions of any kind by the contracting partner must be clearly indicated. Orders that are not clearly formulated may lead to queries, which may in turn lead to delays.
5.8 If the client delays in providing acceptance or breaches its other duties of cooperation, then KANDINSKY is entitled to request compensation for any damage it incurs in this regard, including any additional expenses (e.g. storage costs). The right to any additional claims remains reserved.
5.9 The risk of accidental loss or accidental deterioration of the ordered goods is transferred to the client at the moment in which it is in default of acceptance or payment.
5.10 Partial deliveries and services are permissible to an economically reasonable extent.

6. Payment, prohibition of offsetting, rights of retention, assignment

6.1 Payments are due immediately and must be made by bank transfer or direct debit within 10 days following delivery, without any deductions.
6.2 KANDINSKY reserves the right to request cash on delivery or pre-payment for the entire purchase price or a proportion thereof. The invoice from KANDINSKY may be attached with the order confirmation.
6.3 Payments are considered paid on the first day on which KANDINSKY is able to access the invoice amount.
6.4 If the client is in default of payment, then KANDINSKY is entitled to demand default interest to the amount of 8% per annum above the relevant base rate. If KANDINSKY is able to prove that a higher level of damage was caused by the default,then it is entitled to claim for these damages.
6.5 If the client delays for more than 14 days in settling an invoice, then KANDINSKY is entitled to withhold the services to be carried out for the client, and to only resume with these services once any outstanding amounts including interest have been paid to KANDINSKY. This does not apply if the invoice amount was deferred.
6.6 The client may only offset claims by KANDINSKY with counter-claims or refuse or withhold its services if the counter-claims are recognised by KANDINSKY, undisputed or determined as legally valid.
6.7 The client may only transfer claims against to third parties with the prior written agreement of KANDINSKY.
6.8 In the event of foreign payments, the resulting bank costs for KANDINSKY are passed on.

7. Warranty

7.1 Claims for defects by the client are subject to the client having properly complied with the inspection and objection obligation in accordance with Section 377 of the German Commercial Code. Complaints about defects must be reported to KANDINSKY immediately, but at the latest 5 days following receipt of the goods, or if the defects were not apparent during proper inspection, within 5 days following the discovery of the defect. Quantity deviations and obvious faults must be reported immediately, but at the latest within 48 hours following receipt of the goods. This is calculated based on the moment that the declaration is received by KANDINSKY. In all cases, the special statutory provisions for the final sale of goods to consumers remain unaffected (recourse against suppliers as per Sections 478 and 479 of the German Civil Code).
7.2 The aforementioned obligation also applies for short and excess deliveries. If a complaint is not made in time, then a short or excess delivery is considered approved by the client.
7.3 After cutting, or once any other form of processing has begun on the supplied goods, the right to submit a complaint relating to apparent defects is excluded.
7.4 The client is not entitled to make a complaint in the event of minor deviations in the quality, colour, width, weight, features or design that occur for technical reasons. This also applies to deviations that are customary in the trade, unless KANDINSKY has committed to a true-to-sample delivery in writing. Reference is made in particular to Items 4.4-4.7 and 2.7. The same applies for the comparison between other samples (e.g. digital proofs, proofs) and the final product.
7.5 Liability is excluded for defects that do not impair, or only marginally impair, the value or the usability.
7.6 For deviations in the quality of the materials used, KANDINSKY is only liable up to the order value.
7.7 If there is a defect in the purchased item, then the client is entitled, at its own discretion, to a supplementary performance in the form of defect elimination or to the delivery of a new, defect-free item. KANDINSKY is entitled to refuse the form of supplementary performance selected by the client where this is only possible at a disproportionate cost. The client's claim is the limited to the other type of supplementary performance.
7.8 KANDINSKY is entitled to make the owed supplementary performance dependent upon the client paying the due purchase price. The client is however entitled to withhold a proportion of the purchase price that is reasonable in relation to the defect.
7.9 If remedies or replacement deliveries fail, then the client is entitled to reduce the remuneration or to withdraw from the agreement provided that the defect is not immaterial. Damage claims and claims for reimbursement of expenses remain unaffected.
7.10 If a client's defect complaint proves unjustified, then the client is obligated to reimburse KANDINSKY for any verifiable expenses incurred as a result of remedying the alleged defect.
7.11 If, once supplementary performance has failed, the client chooses to withdraw from the agreement as a result of a defect, then it is not entitled to assert any damage claims as a result of the defect.
7.12 Defect claims are not permitted in the event of second-hand goods.
7.13 Defect-liability cases must be processed directly with KANDINSKY. Negotiations with independent representatives that are not directly employed at KANDINSKY do not constitute negotiations within the sense of Section 203 I of the German Civil Code.

8. Other liability

8.1 Unless stated otherwise in these T&Cs including the following provisions, KANDINSKY is liable in accordance with the relevant legal regulations in the event of a breach of contractual and extra-contractual obligations.
8.2 KANDINSKY is liable for damages in the event of intent and gross negligence - regardless of the legal grounds.
In the event of simple negligence, KANDINSKY is only liable – for damage arising from injury to life, body or health – for damage arising from breach of an essential contractual obligation (an obligation that needs to be fulfilled in order to ensure the correct performance of the agreement in the first place and on which the contractual partner regularly relies and expects to be able to rely); in this case, however, the liability of KANDINSKY is limited to compensation for typical and foreseeable damage.
8.3 The liability limitations set out in Item 8.2 do not apply if a defect is fraudulently concealed by KANDINSKY or if a guarantee has been made for the quality of the goods. The same applies for claims by the client in accordance with the German Product Liability Act.
8.4 The client may only withdraw from or terminate the agreement as a result of a breach of obligation that does not result from a defect if KANDINSKY is responsible for the breach of obligation. The client's free right of termination (in particular in accordance with Sections 651 and 649 of the German Civil Code) is excluded. In all other cases, the statutory requirements and legal consequences apply.
8.5 In the event of a delivery delay attributable to KANDINSKY (for information on delivery, see Item 5), KANDINSKY is liable in accordance with the statutory provisions, whereby damage compensation can only be claimed if KANDINSKY, its legal representative or its agent are accused of intent or gross negligence. The compensation for damages as a result of delays is limited to foreseeable, typical damage.

9. Limitation

9.1 The mutual claims of the contracting parties become invalid in accordance with the statutory regulations unless otherwise stipulated below.
9.2 Contrary to Section 438, Paragraph 1, No. 3 of the German Civil Code, the general period of limitation for claims resulting from material defects and defects in title is one year following delivery. If an acceptance procedure has been agreed, then the limitation starts with the acceptance.
9.3 Statutory special regulations for in rem third-party surrender claims (Section 438, Paragraph 1, No. 1 of the German Civil Code), claims in recourse against suppliers (Section 479 of the German Civil Code) and the damage-compensation claims referred to in Items 8.2 and 8.3 remain unaffected. In these cases, only the statutory limitation regulations apply.
9.4 If KANDINSKY owes the client compensation for damages due to or as a result of a defect in accordance with Item 8, then the statutory periods of limitation for sales law apply (Section 438 of the German Civil Code), including for competing, extra-contractual damage-compensation claims, provided that the application of the regular statutory limitation (Sections 195 and 199 of the German Civil Code) has not given rise to shorter limitation in an individual case. The periods of limitation in the German Product Liability Act remain unaffected in all cases.

10. Reservation of title

10.1 KANDINSKY reserves the title to all goods it supplies, up until payment of all claims arising from the business relationship. The same applies if the purchase price for certain goods deliveries specified by the client has been paid. With a running account, the title reservation to the goods subject to reservation of title acts as a security for KANDINSKY's balance claim.
10.2 It is not permissible to pledge or assign as security the object of purchase before payment has been made in full.
10.3 If the client acts in a way that is contrary to the agreement, in particular by not paying the due purchase price, then KANDINSKY is entitled to withdraw from the agreement in accordance with the statutory regulations and/or to reclaim the goods on the basis of reservation of title. The demand for the return of the goods does not simultaneously constitute the declaration of withdrawal; KANDINSKY is only entitled to demand the return of the goods and reserve the right to withdraw from the agreement. If the client does not pay the due purchase price, then KANDINSKY may only assert this right if it has previously set a deadline for the client that was ignored, or if the setting of a deadline is not necessary in accordance with the statutory regulations.
10.4 If the goods subject to reservation of title are combined with other goods that do not belong to KANDINSKY, then KANDINSKY is entitled to the resulting co-ownership share of the new items in the proportion of the value of the purchased item in relation to the other combined items at the time of the combination. If the client's item is considered the main item, or if the client acquires sole ownership of the new item, then the contracting parties agree that the client grants KANDINSKY joint ownership of the new item according to the ratio of the invoice value of the combined goods subject to reservation of title, and will store these for KANDINSKY free of charge.
10.5 Resale of the goods subject to reservation of title is only permitted as part of normal course of business. The client however hereby assigns to KANDINSKY all claims that arise due to the resale to its customers or a third party. In order to collect this claim, the client also remains authorised following this assignment. KANDINSKY's authorisation to collect the claim itself remains unaffected. However, KANDINSKY is obligated to not collect the claim if the client has complied with its payment obligations arising from the collected proceeds, is not in default of payment and in particular has not applied for the opening of insolvency proceedings and payments have not been suspended. If this is the case, then KANDINSKY can demand that the client reports to KANDINSKY the assigned claims and their respective debtors, provides all information required for collection, issues the associated documents and informs the debtor (third party) of the assignment. If the goods subject to reservation of title are resold together with other goods, whether without or following combination, then the assignment in advance agreed above only applies only up to the amount of the invoice value of the goods subject to reservation of title being resold together with other goods.
10.6 If third parties access the goods supplied by KANDINSKY or a claim assigned to KANDINSKY arising from the resale of these goods, the client must inform KANDINSKY of this immediately and must notify KANDINSKY of all circumstances that are significant in safeguarding KANDINSKY's rights. The client must bear the costs of any intervention required in order to safeguard KANDINSKY's rights. The client must, at its own expense, support KANDINSKY during the intervention according to instructions.
10.7 KANDINSKY is entitled to request that the client provide information on the whereabouts of the supplied goods at any time.
10.8 KANDINSKY is obligated, on the request of the client, to release the securities to which it is entitled in so far as the realisable value of theses securities exceeds the claims to be insured by more than 10%; KANDINSKY is responsible for selecting the securities to be released.
10.9 The client must store the goods subject to reservation of title for KANDINSKY free of charge. It must insure itself in the usual extent against the usual risks, e.g. fire, theft and water. The client hereby assigns to KANDINSKY, to the amount of the invoice value of the goods, the compensation claims it is entitled to assert against insurance companies or other liable parties as a result of damage of the type mentioned above. KANDINSKY accepts the assignment.

11. Property rights, exemption

11.1 When an order is assigned, the client grants KANDINSKY with entitlement to use any copyrights, trademark rights, labelling and other rights that may relate to the print motifs within the context of the contractual purpose.
11.2 The client is obligated to clarify, prior to placing the order, the country where the order items are produced and the countries that are affected by the delivery of the order items in order to ensure that the required rights to manufacture and supply the order items in these countries are in place.
11.3 The client guarantees that it has all necessary rights, in particular copyrights, trademark rights, labelling and other rights, that may be involved in connection with the manufacturing of the print motifs it requires and/or with the supply and/or the import of the printed goods and their further use by the client or a third party. When an order is assigned, the client must release KANDINSKY, on first request, from all claims by third parties as a result of any breaches of property rights. This indemnification obligation covers all expenses that KANDINSKY necessarily incurs as a result of or in connection with a claim by a third party (e.g. its own/third-party lawyers' fees and other costs of legal defence as well as compensation claims). KANDINSKY is not entitled to make any agreements with the third party, and in particular not a settlement, without the approval of the client. In the event of a claim by a third party, the client is obligated to provide KANDINSKY with all information that is necessary in assessing the claims and for defence. This information must be provided immediately, truthfully and in full. The client is obligated, at its own expense, on first request and following the instructions of KANDINSKY, to defend KANDINSKY against a claim or to support KANDINSKY in its defence.
11.4 The indemnification obligation is not conditional upon the claims of third parties being recognised, undisputed or determined as legally valid, but rather applies from the point at which  the third party asserts and justifies its own and/or also its own alleged claims against KANDINSKY. If the third party is able to justify its ownership of rights, then KANDINSKY is entitled          to provide the third party with the client's customer data so that the third party can pursue its rights directly with the client. KANDINSKY will inform the client about the provision of the customer data before the data is provided to the third party.
11.5 The period of limitation is ten years, calculated from the conclusion of the agreement.
11.6 If there is justified concern that use of the requested print motifs would constitute a violation of third-party rights, KANDINSKY is entitled to withdraw from the agreement.

12. Data

KANDINSKY reserves all ownership rights, copyrights and other rights to illustrations, drawings, advertising imprints and other imprints that KANDINSKY
provides to the client. These must only be used by the client within the framework of the agreement. The items listed in Sentence 1 must only be passed to third parties with express prior written consent from KANDINSKY. The items mentioned above must be carefully stored and must be surrendered or destroyed on first request, at the discretion of KANDINSKY. The client's right of retention is excluded here.

13. Packaging

Return of sales packaging that does not occur at the end consumer's premises within the sense of the Packaging Ordinance can only take place at KANDINSKY's premises at at the client's expense.

14. Approval on application as a reference project/product sample

The contracting parties are mutually permitted to use the specific order for advertising purposes and to name the order as a reference project. The parties are also mutually permitted to use their names, labels and brands for publicity free of charge and in the appointment as a reference client and/or in connection with reference projects and/or with reference products (in particular in print, on the Internet, in catalogues, in advertisements and at trade fairs). KANDINSKY is entitled to use and reproduce products manufactured for the client as example samples to show other clients. The contracting parties may limit the existing rights for the future in individual cases, by means of a written notification and by granting an implementation period of 8 weeks.

15. Place of performance, language requirements, place of jurisdiction, applicable law

15.1 The place of performance for both parties is Düsseldorf.
15.2 The language of the agreement is German. In the event of a conflict, the German version of these T&Cs takes priority over other-language versions of these T&Cs.
15.3 The sole place of jurisdiction - including international - for all legal disputes arising directly or indirectly from the contractual relationship as well as from its creation and effectiveness is  the premises of KANDINSKY in Düsseldorf; at KANDINSKY's discretion, also the client's premises.
15.4 The agreement is subject exclusively to the law of the Federal Republic of Germany. The application of the Vienna UN Convention on Contracts for the International Sale of Goods is excluded. The requirements and effects of the reservation of title from Item 10 are subject to the law at the respective location of the item insofar as it renders the choice in favour of German law invalid or ineffective.

16. Data protection

KANDINSKY points out that the client's data – if necessary for business and permissible within the German Federal Data Protection Act – will be saved and edited using IT applications.

17. Severability clause

If one or several of the above clauses are ineffective, or become ineffective over time, the remaining clauses remain unaffected.