General terms and conditions of B&L Media Ltd., Baptiste & Liu Media Ltd.,
1. The conditions hereinafter shall apply for all offers as well as deliveries and performances of B&L Media Ltd.. Differing conditions of the client, which B&L Media Ltd. does not expressly acknowledge in writing, are not binding even if B&L Media Ltd. Does not expressly oppose them.
2. The development of conception and design proposals by B&L Media Ltd. shall be carried out, if no alternative agreement was reached, in return for payment of a fee (presentation fee). Travel expenses and charges are generally invoiced separately. B&L Media Ltd. shall retain the proprietary rights and copyrights to cost estimates, diagrams and other documents that are handed over by B&L Media Ltd. as part of an offer or a presentation. Such documents may not be made accessible to third parties.
3. The written confirmation of order of B&L Media Ltd. is the authoritative thing with respect to the scope of the performance to be rendered by B&L Media Ltd.. If no confirmation of order is present the general statutory regulations for the coming into existence of a contract shall apply. In the event of a client order to B&L Media Ltd. for the arrangement or booking of advertising (advertisements etc.) in advertising media the copies of the confirmations of order of B&L Media Ltd. sent to the client to acquaint itself with sent to the publishing houses, broadcasting and television stations or other providers of advertising media shall be deemed as being the effective content of the contract between the client and B&L Media Ltd. if the client does not oppose this within a week of the receipt of the aforementioned confirmation of order copy. Warranties of qualities, collateral agreements and amendments require the written confirmation of B&L Media Ltd. to be effective. B&L Media Ltd. reserves to right to make amendments to the subject matter of the contract, in particular with respect to the type and manner of the rendering of the graphic and text performances if the subject matter of the contract is not considerably adjusted and the amendments are reasonable for the client.
4. In the absence of a special agreement the prices shall apply ex-works of B&L Media Ltd. and excluding packaging. The respective statutory amount of VAT shall be added to the prices. In the absence of a special agreement the payment shall be paid in cash without any deduction to B&L Media Ltd.’s account stated on the respective invoice form. It is possible for B&L Media Ltd. to invoice completed partial orders. This applies as follows in the trade fair construction sector: 33% upon the award of the contract, 33% upon the construction of the order, 34% upon the dismantling of the order. The retention of payment or set-off due to potential counter-claims of the client that are disputed by B&L Media Ltd. is not admissible. If the client defaults on payments – upon agreement of partial payment with the 1st installment – then the partial payments that are still outstanding shall be due immediately. In this case B&L Media Ltd. can cancel the contract or demand damages for non-performance. Default interest shall be charged at 5% p.a. above the base interest rate of the European Central Bank, but at least 8% p.a. in the event of a default in payment of more than four weeks.
5. In the case of purchase orders, for instance in the case of deliveries of print products, B&L Media Ltd. invoices the quantities that are actually delivered, whereby quantity deviations vis-à-vis the offer or the written confirmation of order of up to 10% as well as a defective units (up to 5%) that are usual in the industry, are permissible.
6. If unforeseen cost adjustments, which are not inconsiderable, arise at short notice for B&L Media Ltd. in the period between the confirmation of order and the delivery then B&L Media Ltd. has the right to recalculate the prices of the quantities still to be delivered based on the increased cost for B&L Media Ltd. or, in the event that no agreement can be reached between B&L Media Ltd. and the client with respect to the price adjustments, the remaining delivery shall be stopped and invoiced based on the deliveries carried out at the agreed price.
7. If B&L Media Ltd. becomes aware of a considerable deterioration of the economic situation of the client following the conclusion of the contract then B&L Media Ltd. Is entitled to make the fulfillment of the payment dependent upon the payment of an appropriate advance.
8. In the event of changes to the order by the client or other delays caused by the client B&L Media Ltd. has the right to the payment of the resulting additional costs. These additional costs shall be invoiced separately and the delivery dates shall be rescheduled if necessary.
9. The stated delivery dates are not fixed dates without this expressly being agreed to.
10. The risk shall be transferred to the client at the latest upon the shipment of the performance and delivery parts ex-works of B&L Media Ltd. and indeed even if partial deliveries are made or B&L Media Ltd. has assumed other performances e.g. the shipment or transportation and assembly. The performance and delivery shall only be insured at the client’s request and expense by B&L Media Ltd. against theft, breakage, damage to goods in transit, damage caused by fire and water as well as other risks that can be insured. If the shipment is delayed due to circumstances, which the client is responsible for, then the risk is transferred to the client from the day of the readiness for dispatch, but B&L Media Ltd. is obliged at the request and expense of the client to provide the insurance that the client demands. Items that are delivered must be accepted by the client irrespective of its rights from the warranty, in accordance with item 12 of these terms and conditions, even if they have defects. Partial deliveries are permissible. The delivery and performance deadline shall have been observed if the client was informed of the readiness for dispatch or to perform up to its expiry. The delivery and performance deadline shall be prolonged by the time in which the client is in default with respect to its main obligations from this contract, in particular payment obligations. In the event of delays of the completion of the delivery and performance caused by the occurrence of unforeseen acts of God such as fire, state directives, strike or lock out, the delivery and performance deadline shall be extended by the duration of the ramifications of such events even in the event that these events arise at one of the suppliers of B&L Media Ltd.. At the exclusion of all more far-reaching claims on the part of the client due to delays in delivery or performance, except in the event of intent and gross negligence the client, the client shall be entitled, if it suffers a loss due to a
delay, to compensation for default, if B&L Media Ltd. is responsible for this, of 0.5% per complete week of delay but restricted in total to 5% of the invoice value of that part of the entire delivery or performance, which cannot be used on time or in accordance with the contract due to the delay. The right of the client to cancel the contract following the fruitless expiry of a subsequent deadline set by B&L Media Ltd. remains unaffected by this clause.
11. B&L Media Ltd. reserves the title of all delivery items, until all the accounts receivables of B&L Media Ltd. from the business relations with the client have been settled. The client is liable for loss or damage and shall insure the reserved property at its own expense. The client shall inform B&L Media Ltd. in the event of attachments of property or other intervention by third parties and explain to the third party that it is the property of B&L Media Ltd.. The client is entitled to resell the delivery item in the ordinary course of business. However it shall assign all the accounts receivables with all the ancillary rights to B&L Media Ltd., which are accrued by the client from the resale visà- vis its clients or third parties, and indeed irrespective of whether the delivery items are resold without being processed or following processing. Following the payment of the client B&L Media Ltd. shall thus release the securities to which it is entitled when their value exceeds the accounts receivables to be secured by more than 20%.
12. In the case of products and services to be delivered by B&L Media Ltd., B&L Media Ltd. guarantees faultless reproduction in technical terms whilst taking account of the delivery time available. In the event of defects of the delivery or performance item, which become or are unusable, or if their usability is considerably impaired due to a fault within six months calculated from the day of the transfer of risk due to a fault, in particular due to poor material or insufficient execution or execution that is not in accordance with the contract, B&L Media Ltd. shall in accordance with the choice of B&L Media Ltd. either subsequently improve the defect or offer an appropriate reduction of the price, yet subject to the condition that the fault is reported to B&L Media Ltd. during the aforementioned period in writing immediately following its recognition. The limitation period for the above warranty claims also amounts to six months as of the date of the transfer of risk, whereby the limitation period for buyers in actions for breach of warranty may not be extended by subsequent improvements. Additional claims of the client vis-à-vis B&L Media Ltd. from the warranty are prohibited except in the event of gross negligence or intent, in particular the compensation of losses or consequential loss caused by a defect that did not occur on the delivery item itself as well as other indirect losses or consequential losses such as lost profit or claims due to loss of production or reduced or lost advertising effectiveness or options of use. The warranty does not relate to defects or losses, which arise due to faulty, imprecise or insufficient information or specifications of the clients or due to errors of the printed documents which B&L Media Ltd. or its vicarious agents are not responsible for, in particular if these are provided by the client, or if the client omits to notify B&L Media Ltd. of obvious faults of the sample sentences, master drawings or test prints submitted for release or acceptance. 13. Claims for damages from a positive violation of a claim, from the violation of an obligation at the conclusion of the contract, from a tortuous act, and also from a claim to indemnity in accordance
with the product liability claims of third parties are not permitted except in the event of intent and gross negligence. Claims for damages in the event of the impossibility of performance or inability to perform of B&L Media Ltd. or its vicarious agents except in the event of gross negligence and intent are also not permitted; the right of the client to cancel the contract remains unaffected by this clause. B&L Media Ltd. shall only be liable with respect to the essential deliveries and performances of third parties that form the scope of delivery of B&L Media Ltd. following the fruitless court action of the client against such third parties to which end B&L Media Ltd. shall assign its claims against the third party to the client.
14. The storage of artwork masters used (master drawings, lithography) or other goods (trade fair stands etc.) shall only be carried out if expressly ordered by the client. The goods ordered for storage at B&L shall be insured against damage caused by fire, theft and water. B&L shall store the relevant data in intercourse with the clients for the purpose of its processing in automated processes and, if necessary, its use in another way.
15. The place of performance shall be the company headquarters of B&L Media Ltd. In the absence of a different written agreement. The place of jurisdiction shall be Bury St. Edmunds.
16. Unless otherwise agreed law of United Kingdom shall be applied to the contractual relations with foreign clients.
Terms and conditions have been updated: 04.09.2011