Terms and Conditions Advertising Factory

General Terms and Conditions of Business, Payment, and Delivery of Pat Patachon GmbH for the service area “Advertising Technology”

I. GENERAL – SCOPE
1. These General Terms and Conditions of Business, Payment, and Delivery of Pat Patachon GmbH for the service area “Advertising Technology” (hereinafter referred to as “Terms and Conditions”) apply in their current version (published, among others, on the Internet at www.pat-patachon.de) as a framework agreement for all offers, contracts, and deliveries of Pat Patachon GmbH (hereinafter also referred to as “Pat Patachon”, “Contractor”, or “We”) for the area of “Advertising Technology”. We hereby expressly object to any deviating conditions of the purchaser/client. They are only valid in exceptional cases if they have been agreed to in writing or explicitly confirmed by us in writing. This requirement for consent applies in any case, for example, even if the contractor carries out the delivery to the purchaser without reservation in knowledge of the purchaser’s Terms and Conditions. § 305b BGB (German Civil Code) remains unaffected. These Terms and Conditions apply in their respective version also for future orders, without Pat Patachon having to refer to these Terms and Conditions again in each individual case.

2. In principle, we only enter into business relationships with entrepreneurs (as defined in § 14 BGB), legal entities under public law, or special funds under public law.  These Terms and Conditions are therefore principally only directed at the aforementioned persons. The orientation towards the aforementioned group of persons results in consequences for the offer and pricing, risk-bearing, liability for defects, and warranty rules. The following provisions describe the design of the extended scope for this recipient group. If you are a consumer and still order from us, the following applies: The presumed consent of consumers (as defined in § 13 BGB) to the validity of these Terms and Conditions only extends as far as it is legally permissible towards them. To protect your rights, it is essential that you identify yourself as a consumer in your order. We reserve the right to reject an inquiry / order from consumers.

3. Our Terms and Conditions are part of our offers and are handed over or sent with them. Additionally, we refer to the validity and inclusion of our Terms and Conditions on our delivery notes. If orders are placed despite conflicting terms and conditions, we assume that the purchaser recognizes exclusively our Terms and Conditions despite contrary formulations.

II. OFFER / ORDER / CONTRACT CONCLUSION / ORDER CONFIRMATION
1. The offers of the contractor, including delivery time information, are subject to change and non-binding. We reserve the right to make technical changes as well as changes in form and color,    as long as these are within reasonable limits.

2. With the order, the client bindingly declares that the contractor should provide the ordered delivery or service. Unless otherwise agreed, all prices are considered net prices plus statutory VAT ex works, excluding packaging.

3. The order becomes binding through the order confirmation of the contractor. Any complaints must be communicated to the contractor immediately by the client.   Ancillary agreements must be fixed in writing.

4. Our declarations of acceptance require written form to be legally effective. The same applies to supplements, amendments, and ancillary agreements. Regarding our scope of delivery and service, our written order confirmation or our commercial letter of confirmation is authoritative.

5. The contractor reserves the ownership and copyright to offers, drawings, designs, etc. The offers and designs, etc. may not be made accessible to third parties, especially competitors, and may not be used for tendering purposes. If the offer is not accepted, they must be returned or deleted immediately.

6. For samples, sketches, designs, and other project services expressly requested by the client, the agreed fee must be paid, even if the order is not placed. The ownership of these service objects only transfers to the client after payment of the agreed fee.

7. For advertising systems or other works offered including installation, the following services are generally not included in the offer price, unless and to the extent that they are explicitly listed in writing in the offer: The low-voltage installation up to the advertising system, the scaffolding or any lifting equipment, any services of other trades, such as masonry, plastering, painting or sealing work, the costs for a structural stability certificate and disposal costs of any kind such as carrier and transfer materials, obstacles in the subsoil, special waste and hazardous materials. If the low-voltage installation is desired by the client, an appropriate connection must be provided on site.

III. RETENTION OF TITLE
1. The delivered goods remain the property of the contractor until full payment of all claims existing at the invoice date, including future claims, also from simultaneously or later concluded contracts against the client. This also applies if payments are made on specially designated claims. In the case of a current account, the reserved property is considered as security for the contractor’s balance claim.

2. The client is entitled to resell the deliveries in the ordinary course of business. Other dispositions, in particular pledging or transfer of ownership by way of security, are not permitted. The client must immediately notify the contractor in writing if and to the extent that third parties access the goods belonging to the contractor. He is obliged to resell the reserved goods only under retention of title, with the provision that the purchase price claim from the resale is transferred to the contractor as follows: The client hereby assigns his claims from the resale of the reserved goods with all ancillary rights to the contractor, regardless of whether the reserved goods are resold without or after processing. The contractor hereby accepts the assignment. If the realizable value of the securities exceeds the contractor’s claims by more than 10%, the contractor will – at the client’s request – release securities of his choice. The client is prohibited from making agreements with his customers that exclude or impair the contractor’s rights in any way. In particular, the client may not enter into any agreement that nullifies or impairs the advance assignment of claims to the contractor. The client remains authorized to collect the claims assigned to the contractor even after assignment; however, the contractor expressly reserves the right to collect the claims independently, especially in case of default of payment by the client. At the contractor’s request, the client must disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the related documents, and inform the debtor of the assignment.

3. If the reserved goods are resold together with other goods not sold by the contractor, the assignment of the claim applies to the amount of the value of these co-ownership shares. If the reserved goods are used by the client to fulfill a contract for work and materials or a delivery purchase, the above conditions apply accordingly to the claim from this contract.

4. In case of processing or treatment of goods delivered by the contractor and owned by him, the contractor is to be regarded as the manufacturer according to § 950 BGB (German Civil Code) and retains ownership of the products at every stage of processing. In case of combination or mixing of the reserved goods with other objects, the contractor becomes the owner or co-owner of the new object or the mixed stock. If the contractor’s ownership expires due to combination or mixing, the client already now transfers the ownership rights to which he is entitled to the new stock or the item to the extent of the invoice value of the reserved goods to the contractor and stores them for him free of charge. The resulting co-ownership rights are considered as reserved goods in the sense of these conditions.

5. The contractor’s retention of title is conditional in such a way that with the full payment of all claims, the ownership of the reserved goods automatically passes to the client and the assigned claims are due to the client.

6. If third parties are involved in the processing or treatment, the contractor is limited to a co-ownership share in the amount of the invoice value (final invoice amount including VAT) of the reserved goods. The ownership thus acquired is considered as reserved property.

IV. ORDER EXECUTION
1. Changes to the execution that prove technically necessary and are reasonable for the client, taking into account the interests of the contractor, are reserved.

2. All orders are executed according to the print data or construction drawings provided to us by the client, unless otherwise agreed in writing.

3. The client must transmit these print data to us in the file formats specified by us at his own expense and risk. In particular, the client is solely responsible for the completeness and correctness of the data transmitted to us. A check of the data transmitted by the client or his representative is only carried out for obvious errors that are recognizable at first glance.

4. The storage and archiving of the print data provided to us is expressly approved by the client. We assume no liability for the storage of the provided data.

5. The validity of the contract is independent of approval by authorities or third parties. Obtaining such approval is the responsibility of the client. If the approval is obtained by the contractor, they act as the client’s representative. In any case, the costs and approval fees are borne by the client. If the approval is ultimately denied, the contractor can demand the agreed contract sum. Savings and advantages for the contractor due to non-execution of the order are to be deducted, insofar as they are proven.

6. Necessary changes, including those due to official requirements, are considered as contract extensions.

7. If the contractor is required to dispose of dismantled parts due to legal provisions or official instructions, the client must bear the additional disposal costs even if this was not explicitly agreed upon. This does not apply if legal or other regulations stipulate otherwise.

V. ASSEMBLY / REPAIRS
1. For accepted assembly work, it is assumed that it can be carried out continuously without hindrances and delays.

2. The assembly prices, even if agreed as fixed prices, do not include costs incurred due to delays or additional work required because of circumstances attributable to the client. Any resulting expenses for labor, time, and materials are to be borne by the client.

3. Any necessary third-party services (see above, Section IV, Paragraph 5) can be commissioned by the supplier on the client’s account.

VI. DELIVERY TIME / DELIVERY / SHIPPING
1. For delivery of the advertising system or other works without assembly, shipping or transport is at the expense and risk of the client. The costs for any transport insurance are borne by the client. Any transport damage must be immediately reported to the carrier through a factual report. The delivery period is agreed individually or specified by the contractor upon order acceptance. Delivery dates are only valid if expressly confirmed by the contractor. If the contract is concluded in writing, the confirmation of the delivery date must also be in writing.

2. The specified delivery time begins on the day when the order is finally clarified in technical and design aspects. This also includes the payment of the agreed advance and the granting of approval by authorities or third parties.

3. The contractor is only entitled to partial deliveries if – the partial delivery is usable for the client within the scope of the contractual purpose, – the delivery of the remaining ordered goods is ensured, and – the client does not incur significant additional effort or costs.

4. If the goods are to be shipped, the risk of accidental loss and accidental deterioration of the goods passes to the client as soon as the shipment has been handed over to the person carrying out the transport.

5. If the contractor delays performance, the client can only exercise the rights under § 323 BGB if the delay is the contractor’s responsibility. This regulation is not associated with a change in the burden of proof.

6. The contractor has a right of retention according to § 369 HGB on print and stamp templates, manuscripts, raw materials, and other objects supplied by the client until complete fulfillment of all due claims from the business relationship.

7. The contractor does not guarantee timely transport or transport duration and arrival of the goods. Our information is given without exception to the best of our knowledge but is non-binding.

VII. ACCEPTANCE
1. If advertising systems or other works are assembled by the contractor, the client is obliged to accept them immediately after completion of the assembly. If prevented, the client must carry out the acceptance within 10 working days. If this does not occur, the acceptance is deemed to have taken place upon expiry of the deadline if the contractor has specifically pointed out to the client at the beginning of the period the intended significance of their behavior.

2. For call-off orders, the client is obliged to accept the entire quantity underlying the call-off order. The client’s call-off obligation constitutes a main obligation. In the absence of any other agreement, a acceptance period of 12 months applies to call-off orders, calculated from the day of order confirmation. If acceptance has not taken place by this time, the contractor is entitled to set the client a deadline of two weeks to accept the remaining order quantity. After this period has expired without result, the contractor has the choice of either demanding advance payment of the purchase price and delivering the remaining quantity in full or withdrawing from the contract according to § 323 BGB. Further rights of the contractor, such as the right to compensation, remain unaffected.

3. Goods reported ready for dispatch or assembly that are not called up by the client within five working days will be stored at the client’s expense and risk. The actual costs incurred for storage (e.g., rent for the required storage spaces, insofar as these are used for the goods to be stored) are decisive. If an actual calculation of costs is not possible, EUR 50 per day will be charged for storage. Invoicing takes place simultaneously with the storage.

VIII. FORCE MAJEURE
1. Unforeseeable or unavoidable events of force majeure, export/import bans, official orders, as well as delivery delays or non-delivery by our suppliers, entitle the contractor, even within a delay, to postpone the delivery for the duration of the hindrance or delay or – if not merely a temporary impediment to performance, such as a strike – to withdraw from the contract in whole or in part with regard to the unfulfilled portion. Claims against the client that are justified up to the occurrence of the event remain unaffected.

2. The contractor will immediately inform the client about the occurrence of a case of force majeure. All unforeseeable, unavoidable circumstances that make delivery significantly more difficult or impossible for the contractor, such as trade policy measures, operational disruptions (e.g., fire, raw material or energy shortages) as well as obstructions of transport routes, are considered equivalent to force majeure, regardless of whether these circumstances occur at the contractor, his suppliers or a subcontractor. The contractor commits to a careful selection of his suppliers or subcontractors.

3. Operational disruptions for which the contractor is not responsible – both in the contractor’s operation and in that of a supplier – such as strikes, lockouts, and all other cases of force majeure, only entitle the termination of the contract if the client can no longer be reasonably expected to wait; otherwise, the agreed delivery period is extended by the duration of the delay. However, termination is only possible at the earliest four weeks after the occurrence of the operational disruption described above. The contractor’s liability is excluded in these cases.

IX. PRICES
1. The prices stated in the contractor’s offer are subject to the condition that the order data on which the offer is based remain unchanged, but for a maximum of six weeks after the client receives the offer. For orders with delivery to third parties, the ordering party is considered the client, unless otherwise expressly agreed.

2. The contractor’s prices are net prices plus the applicable value-added tax. The contractor’s prices are ex works. They do not include packaging, freight, postage, insurance, and other shipping costs.

3. Subsequent changes at the instigation of the client, including the resulting machine downtime or downtime of fitters, will be charged to the client. Subsequent changes also include repetitions of proofs requested by the client due to minor deviations from the template.

4. Sketches, drafts, typesetting proofs, print proofs, correction proofs, changes to supplied/transferred data, and similar preparatory work initiated by the client will be charged.  The same applies to data transfers (e.g., via email or internet).

X. PAYMENT TERMS
1. Payment must be made within the agreed payment terms after receipt of the invoice. Any discount agreement does not apply to freight, postage, insurance, or other shipping costs. The invoice is issued on the day of delivery, partial delivery, or readiness for delivery (debt to be discharged at creditor’s domicile, default of acceptance). 2. For extraordinary advance services, appropriate advance payment may be required. These are clearly identified in the offer and are part of the contract.

3. If the client does not pay the invoice amount within 10 days after the expiry of the payment deadline stated on the invoice, they are in default even without a reminder. In case of payment default, default interest of 9 percentage points above the base interest rate is to be paid, furthermore all reminder and collection costs are to be reimbursed. The assertion of further claims is not excluded by this.

4. If after conclusion of the contract it becomes apparent that the fulfillment of the payment claim is endangered by the client’s lack of ability to perform, the contractor can demand advance payment, withhold goods not yet delivered and cease further work. These rights are also available to the contractor if the client is in default with the payment of proper deliveries based on the same legal relationship. § 321 para. 2 BGB (German Civil Code) remains unaffected.

5. Non-compliance with the payment terms or circumstances that become known to the contractor after the respective conclusion of the contract and that give rise to justified doubts about the client’s ability to pay result in the immediate maturity of all claims of the contractor, including current bill obligations. In this case, the contractor is entitled to withdraw from the contract and demand compensation for any damages incurred, unless the client makes an advance payment or provides sufficient security.

6. Even if the client specifies otherwise, we reserve the right to offset payments against older debts, in which case we will immediately inform the client about the nature of the offset. If costs and interest have already been incurred, the payment may first be offset against the costs, then against the interest, and finally against the principal service.

7. Offsetting and assertion of rights of retention are excluded unless the counterclaim is undisputed or legally established. This also applies to any claims by the client for completion or defect remediation costs. We are entitled to assign claims from our business relationships.

8. Advance and installment payments are not subject to interest. Travelers, representatives, technicians, and drivers of the supplier are only authorized to accept payments if they present a corresponding power of attorney.

XI. LIABILITY FOR DEFECTS / WARRANTY
1. The client must immediately check the conformity of the goods as well as the proofs and intermediate products sent for correction in any case. The risk of any errors passes to the client with the declaration of readiness for printing/production, unless these are errors that only occurred or could be recognized in the production process following the declaration of readiness for printing/production. The same applies to all other release declarations by the client.

2. Obvious defects must be reported in writing within a period of one week from receipt of the goods. Defects that cannot be discovered even with the most careful inspection within this time must be reported in writing immediately after discovery, with immediate cessation of any processing or use, but at the latest within a period of one week after discovery, otherwise the assertion of the warranty claim is excluded.

3. In the case of justified complaints, the contractor is initially obliged and entitled to remedy and/or replace the goods at his discretion. The client generally grants the contractor two attempts at subsequent performance. If the contractor does not fulfill this obligation within a reasonable period or if the rectification fails despite repeated attempts, the client can demand a reduction in remuneration (reduction) or cancellation of the contract (withdrawal). However, the contractor has no right of withdrawal if there is only a minor breach of contract, especially in the case of minor defects.

4. If defects occur only partially in the goods delivered by us, the customer can only withdraw from the contract in full if a defect-free partial delivery is of no interest to him; otherwise, he remains obliged to accept the defect-free part of the goods.

5. The contractor’s liability for defects in the goods is limited to the contractually typical and foreseeable damage. In business relationships with entrepreneurs (see above, Section I, Paragraph 2), liability for damages that have not occurred to the goods themselves (consequential damages) is excluded. This does not apply if the contractor has breached a material contractual obligation (obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the client regularly relies and may rely), the consequential damage that has occurred is within the scope of a guarantee given by the contractor for the quality of the goods, or there is an intentional or grossly negligent breach of duty by the contractor, his legal representative or his vicarious agent. The same applies to damages resulting from injury to life, body or health that are based on a negligent breach of duty by the contractor or an intentional or negligent breach of duty by a legal representative or vicarious agent, as well as damages under the Product Liability Act.

6. Commercially customary or insignificant color deviations and material tolerances do not constitute a defect and do not entitle to a complaint. In the case of color reproductions in all production processes, minor deviations from the original cannot be objected to. The same applies to the comparison between other templates (e.g., digital proofs, press proofs) and the final product. Furthermore, liability for defects that do not or only insignificantly impair the value or usability is excluded.

7. For entrepreneurs (see above section I paragraph 2), the claim for rectification expires with a period of one year after the transfer of risk to the client. Insofar as claims for damages exist according to section XI paragraph 3, these expire within two years from the transfer of risk. For the production of movable items that have been used for a building in accordance with their usual use and have caused its defectiveness, a limitation period of five years applies from the transfer of risk.

8. Deliveries (including data carriers, transferred data) by the client or by a third party engaged by them are not subject to any obligation of inspection on the part of the contractor.  This does not apply to data that is obviously not processable or not readable. For data transfers, the client must use virus protection programs corresponding to the latest technical standard before sending. Data backup is solely the responsibility of the client. The contractor is entitled to make a copy. 9. Over- or under-deliveries of up to 10% of the ordered quantity cannot be objected to. The delivered quantity will be charged.

XII. INTELLECTUAL PROPERTY RIGHTS / INDEMNIFICATION
1. The client ensures that by commissioning the contractor, carrying out their order, and providing data, images and/or texts, no rights of third parties, in particular copyrights, personal rights, and industrial property rights (including trademark rights), are violated.

2. The client is obligated to fully indemnify the contractor on first demand from all claims of third parties, insofar as these claims result from the order given to us, especially if third parties make claims against the contractor due to the alleged infringement of their rights through the use of data, images and/or texts provided by the client.

3. Sample copies of the orders may be used by the contractor as quality samples for advertising purposes, including at trade fairs and exhibitions.

4. The client grants the contractor the right to use photos and descriptions of the project for advertising purposes on its website and in social networks without restriction, unless expressly excluded at the time of order placement.

XIII. OTHER BREACHES OF DUTY / LIMITATION OF LIABILITY / STATUTE OF LIMITATIONS
1. Claims for damages or reimbursement of expenses for culpable breach of non-essential contractual obligations are excluded, regardless of the legal grounds, unless it is an intentional or grossly negligent breach of duty by the contractor, its legal representative or vicarious agent, or damages resulting from injury to life, body or health based on a negligent breach of duty by the contractor or an intentional or negligent breach of duty by a legal representative or vicarious agent.

2. Liability – except for damages resulting from injury to life, body or health as well as liability under the Product Liability Act – is limited to compensation for typical and foreseeable contractual damage, unless it is an intentional or grossly negligent breach of duty by the contractor, its legal representative or its senior employees.

3. Claims of the client against the contractor according to this section XIII expire after one year. Excluded from this are damages resulting from injury to life, body or health, claims under the Product Liability Act, and intentional or grossly negligent breaches of duty by the contractor, its legal representative, or its senior employees.

XIV. ARCHIVING
Products belonging to the client, in particular data and data carriers, are only archived by the contractor beyond the time of delivery of the final product to the client or their vicarious agents by express agreement and for special remuneration. If the aforementioned items are to be insured, the client must arrange this themselves in the absence of an agreement.

XV. PLACE OF PERFORMANCE / JURISDICTION CLAUSE / PARTIAL INVALIDITY
1. In dealings with entrepreneurs (see above section I paragraph 2), the place of performance is the registered office of the contractor (Berlin).

2. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the contractor (Berlin), if the customer is an entrepreneur, a merchant, a legal entity under public law or a special fund under public law. However, the contractor is also entitled to sue at the general place of jurisdiction of the customer.

3. German law applies to the contractual relationship. UN sales law is excluded. The prerequisites and effects of the above-agreed retention of title are governed by the law at the respective storage location of the goods, insofar as the choice of law in favor of German law should be inadmissible or ineffective under the respective law.

Status: 15.04.2024