Terms and conditions
Terms and conditions
This is a translation of the original terms and conditions of business in German.
The original text in German is binding.
Linkgroup: terms and conditions of business for business customers
January 2006 edition
I. Scope
II. Quotation and contract
III. Prices
IV. Deliveries and delivery deadlines
V. Payment
VI. Retention of title
VII. Warranty
VIII. Liability
IX. Customer’s responsibilities
X. Copyright
XI. Place of performance and jurisdiction
1. The following are customary terms and conditions of business that apply to the delivery to the customer of all products and services of Linkgroup (comprising Visiolink AG, Printlink AG and the production units Iconlink and Dokulink, hereinafter referred to as “Linkgroup”). They also govern all future business relations with the customer. In placing an order, the customer acknowledges these terms and conditions of business.
2. Linkgroup does not recognise any customer terms and conditions that contradict or deviate from the present terms and conditions of business. Such terms shall not become part of the agreement, even if Linkgroup does not explicitly reject them.
1. A contract is only deemed to exist between Linkgroup and the customer once delivery of the product(s)/service(s) has commenced or the customer has received written confirmation of the order from Linkgroup. Customer orders are deemed to be accepted only once Linkgroup commences work on the product(s)/service(s) or orders have been confirmed in writing by Linkgroup. Unless specified otherwise, prices specified in quotations are calculated on the basis of complete, appropriate documentation and data, and binding, unambiguous information. Any quotation made on the basis of imprecise information or information that is not yet available must always be regarded as a non-binding estimate. Estimated or budgeted prices specified at the quotation stage are non-binding. Unless specified otherwise, quoted prices shall remain effective for 30 days.
2. If the customer has specific requirements for the product(s)/service(s) to be delivered by Linkgroup, these must be specified in writing when the order is placed.
3. Spelling in German is subject to the most recent edition of the Duden dictionary.
4. Linkgroup is entitled to place internal identification marks, e.g. file paths, outside the printed area on films or data, without the customer being able to derive any claims from this.
1. Unless otherwise agreed on an individual basis, Linkgroup’s prices are net, ex works. Prices exclude the costs of packaging, shipping, carriage, postage, couriers, the costs of data media or data transmission, or general expenses such as staff travel and accommodation expenses, which will be billed separately at cost. Prices exclude value-added tax, which will be charged at the rate ruling at the tax point.
2. Prices agreed for a specific order are not binding for follow-up orders to the initial order. If a framework agreement exists between Linkgroup and the customer, prices for follow-up orders will be set within the limits specified in the framework agreement.
3. At the customer’s request, Linkgroup will provide proofs or documents for correction purposes; these will be billed separately.
4. Prices are subject to any increases in the price of materials that occur before the order is completed.
IV. Delivery and delivery deadlines
1. Delivery is made at the customer’s own risk. The risk passes to the customer at the moment the goods have left Linkgroup’s premises/warehouse, even if, contrary to Point III. 1, Linkgroup is bearing the costs of delivery. In the event of delays in dispatch or delivery that are within the control of the customer, the risk passes to the customer at the moment notice of readiness to deliver is given. The same applies to part deliveries. The customer is free to insure the goods during transport at his own expense.
2. Any dates specified by Linkgroup for delivery are approximate and subject to change unless fixed deadlines have been expressly agreed in an individual contract.
3. If Linkgroup’s delivery of the product(s)/service(s) depends on a proper and/or timely delivery from a supplier, the agreed delivery deadline will be extended accordingly if Linkgroup itself does not receive proper and/or timely delivery and if it is not possible or economically reasonable for Linkgroup to make an alternative arrangement. The delivery deadline will be extended by the period from the moment the customer received proofs, layouts, etc., for checking from Linkgroup to the date the customer’s input is received by Linkgroup. If, after the order has been placed, the customer requests changes to the order that affect the amount of time required for Linkgroup to deliver, the delivery deadline will be extended accordingly. The delivery deadline will also be extended by an appropriate period of time if unforeseeable problems such as mobilisation, war, industrial action, etc., occur which are beyond Linkgroup’s control and responsibility. Linkgroup will inform the customer if such problems arise.
4. Unless agreed to the contrary, a deviation of plus or minus 10% of the ordered quantity – plus or minus 20% if the material was manufactured specially – must be accepted by the purchaser. The quantity that is actually delivered will be billed.
5. Materials procured by the customer must be delivered to Linkgroup franco domicile in a usable condition. The customer is liable for any damages that may arise because the materials are unusable (incorrect quality or quantity); this includes storage of the materials at the customer’s expense and risk.
6. In the case of make-and-hold orders, any additional costs arising for warehousing and interest on the capital tied up in the order (labour and materials) will be borne by the customer.
7. The actual costs of transport will be billed once the goods are delivered. Pallets, containers and boxes will be exchanged or billed at cost if they are not returned, franco, in good condition within four weeks of receipt of the delivery.
1. Unless agreed otherwise in individual cases, terms of payment shall be 30 days from the date of invoice, with no deduction.
2. In the event of default, Linkgroup is entitled to charge the customer interest in arrears at the rate of 5%. If Linkgroup is able to prove that the default resulted in a larger loss, it is entitled to pursue damages for this larger loss. However, the customer is also entitled to prove to Linkgroup that the default resulted in no loss or a significantly lower loss.
3. As a matter of principle, Linkgroup does not accept bills or WIR cheques. Linkgroup is not obliged to accept payment by cheque. In any case, cheques will be accepted for processing only, with the customer bearing all cashing and interim interest charges.
4. The customer is not entitled to deduct counterclaims not recognised by Linkgroup from the invoice or exercise a right to withhold payment on this basis unless the counterclaims are unappealable or undisputed by the contracting parties.
5. Changes, corrections or additional products/services not included in the cost estimate that are caused by the customer or his agent during delivery of the product(s)/service(s) will be billed in addition. Linkgroup can, without prior notice, bill separately for additional expenses necessary for proper completion of the work, above all in cases where supplied material is inadequate, missing, or unsuitable for reproduction.
6. Hosting or ASP (application service providing) fees will be billed at the commencement of the services in question or, in the case of an existing contract, at the beginning of the quarter. Fees will be calculated in monthly instalments on a pro rata temporis basis. The minimum is 6 months. Linkgroup can adjust these fees at any time at the end of a month – in particular if there is a change in actual costs or if a connection is heavily used – subject to 30 days’ notice. Improvements to the services offered at the same or reduced fees can also be implemented at shorter notice at the end of a month.
7. Linkgroup may request guarantees of payment after the order has been accepted. If no guarantees of payment are furnished, work on the order may be suspended; in this case the costs accrued become due with immediate effect. If an order ties up substantial financial resources, either for materials and work by external providers, or because it takes more than 2 months to complete, Linkgroup is entitled to demand advance payment to cover its expenses. Materials, paper and card bought in at the request of the customer that are not used within 3 months will be billed by Linkgroup, including the costs of any additional work entailed.
1. Linkgroup reserves title to the delivered goods until all claims and debts related to the business relationship have been settled.
2. If the customer sells reserved goods in the ordinary course of business, at that moment he assigns to Linkgroup all claims and secondary rights accruing to him vis-à-vis his buyer or third parties by virtue of the onward sale. Until revoked, Linkgroup authorises and obliges the customer to recover this assigned claim; this does not affect Linkgroup’s authority to recover the claim itself. As long as the customer properly meets its payment obligations to Linkgroup, Linkgroup undertakes not to recover the claims itself. The customer must provide Linkgroup with all information necessary to recover the claim, hand over the relevant documentation, and notify the obligor of the assignment.
3. The customer may not dispose of reserved goods in any way that prejudices the rights of Linkgroup, for example by pledging them or transferring them as a guarantee. The customer must notify Linkgroup immediately if goods are seized or confiscated by third parties.
4. If the collateral transferred to Linkgroup exceeds the value of the secured claims by more than 20% in total in terms of the realisable value of the collateral, at the request of the customer Linkgroup is obliged to release such collateral as it may choose to this amount.
5. Processing or adaptation of the goods delivered by Linkgroup shall always be done by the customer for Linkgroup. If goods are processed together with others not belonging to Linkgroup, Linkgroup acquires co-ownership of the new product in relation to the value of the delivered and processed goods to the other processed objects at the time of processing.
1. Linkgroup provides a warranty on the contractual product(s)/service(s) against defects for 12 months from the date of acceptance or commissioning. Linkgroup is liable for defects of title only to the extent that they would make it difficult or impossible to use the product or service as per the contract. This is without prejudice to Section X. of the present terms and conditions of business.
2. The customer must immediately examine the product or service delivered by Linkgroup for defects. This applies particularly when the customer receives proofs for his OK to print or OK for production. If there is an obvious defect, this must be notified to Linkgroup within one week of delivery; otherwise the corresponding warranty claims are void. If the customer fails to notify Linkgroup of a hidden defect within one week of discovering it, the corresponding warranty claims are also void.
3. If defects in the delivered product(s)/service(s) arise within the warranty period, Linkgroup will remedy them. Linkgroup can choose whether to do so by remedying the defect or delivering a new product/service. Linkgroup can refuse to remedy defects if this would only be possible at disproportionate cost. The customer may not remedy defects itself. If it is not possible to remedy a defect, there are at least two attempts to remedy the defect, or if, despite being given a reasonable deadline to remedy the defect, Linkgroup refuses to do so or delays unnecessarily, the customer can withdraw from the contract in writing or reduce payment by an amount corresponding to the defect. If the defect in the product/service is the result of a circumstance that is within Linkgroup’s control as per the provisions of VIII. of the present terms and conditions of business, instead of withdrawing from the contract or reducing payment the customer can pursue damages on the basis of nonperformance.
4. The warranty does not cover defects in the delivered product(s)/service(s) that result from the use of defective material, e.g. incorrectly created digital documents, supplied by the customer to Linkgroup for processing. Linkgroup will bill separately for additional expenses resulting from the customer’s supplying defective material.
5. Work to remedy defects not covered by the warranty and changes requested by the customer after the order has been placed that lead to more work for Linkgroup will be billed separately. This also applies to cases where unclear information from the customer, e.g. incorrectly filled-out order forms, or improper treatment of the product(s)/service(s) results in additional work for Linkgroup.
6. Hosting and application service providing services are in principle available for use by the customer 24 hours a day, 7 days a week. The functions or accessibility of the hosting infrastructure may be impaired or interrupted temporarily by force majeure, for technical reasons or during maintenance work. Linkgroup assumes no liability for the resultant material and immaterial damages. The customer or third parties cannot assert claims. If the use of services is disrupted, the customer only has the right to withdraw from the contract provided he has informed Linkgroup of the disruption immediately in writing and has twice set a reasonable deadline for the problem to be remedied. Interruptions to services announced in advance, in particular interruptions resulting from maintenance work, do not count as disruptions.
7. Service agreements for hosting and application service providing are concluded for an indefinite term unless there is a written agreement to the contrary. Each contracting party may terminate the service agreement at the end of a month subject to 6 months’ notice sent by registered post; however, this may only be done once a minimum period of 6 months has elapsed. Extraordinary termination is only possible if both parties agree.
8. Documents, materials for reproduction (photographs, data media, type matter, photolithos, montages, plates, etc.) and tools (dies and punching dies, etc.) produced by Linkgroup remain the property of Linkgroup.
9. Customary deviations in terms of materials and execution, in particular in terms of cutting accuracy, faithfulness of reproduction, tonal values and quality of print materials (paper, card, etc.) are possible. If suppliers have imposed tolerances on Linkgroup, these will also be applicable with respect of the customer.
1. Linkgroup shall in principle only be liable for intentional or grossly negligent conduct of its own or of its vicarious agents or subcontractors. Linkgroup is liable for bodily damage to the extent provided in the law.
2. Only in cases where Linkgroup infringes material contractual duties (“cardinal duties”) shall it also be liable for ordinary negligence; this is limited to contractually typical and reasonably foreseeable losses. Liability for further damage cannot be accepted.
3. Notwithstanding any guaranteed quality of the product or service, Linkgroup is liable for subsequent damages only to the extent that they result from a deviation in the product(s)/service(s) delivered by Linkgroup from the contractually agreed quality, and that this contractually agreed quality was supposed to protect the customer from certain subsequent damages. Otherwise no further liability can be accepted for damages as a consequence of defects.
4. Linkgroup draws attention to the threat of viruses and hacking when using the Internet. Linkgroup is not liable for damages resulting from the customer’s failure to use available technology to take appropriate precautions, in particular the failure to use a firewall or antivirus software.
IX. Customer’s responsibilities
1. The customer must write his name and address on data media provided to Linkgroup for the purposes of delivering the order. The customer must make backup copies of all data before giving it to Linkgroup.
2. Any material supplied by the customer to Linkgroup for processing must be sent to Linkgroup franco domicile.
3. For orders involving the print reproduction of digital data or the corresponding imaging of films, the customer must provide Linkgroup with an accurate laser print in advance.
4. The customer must come to a separate agreement with Linkgroup on the protection and restoration of data, otherwise Linkgroup is entitled, 2 weeks after delivery and without any further notice to the customer, to delete data that are connected with an order and are intended to be output, i.e. converted to visual form. Data used for the execution of an order can be deleted 24 months after delivery or completed processing of the data.
5. The customer undertakes to check proofs and documents submitted for correction (press proofs, proofs, copies, files, etc.) for mistakes, and to return them with his OK to print and any corrections by the agreed deadline. Linkgroup is not liable for mistakes the customer failed to see, or for work done or corrections made by the customer himself. If it has been agreed that proofs and documents will not be submitted for correction, or if the customer directly calls up films, files or plates without such proofs or documents, the customer bears the full risk. Corrections and changes given by the customer over the phone must be confirmed in writing, otherwise he has no legal recourse.
6. Without written agreement there is no obligation to store working materials (files, negatives, colour prints, photolithos, film copies, type matter and tools). Any further storage must be agreed separately, and will be done at the customer’s expense and risk; in particular, the risk that changes in processing technology will result in difficulties when making material available subsequently. The costs of archiving, subsequent preparation, formatting and output resulting from an agreement to store material will be billed separately.
1. The customer is liable for ensuring that the execution of the order does not infringe the rights of third parties, in particular copyrights and rights of reproduction. The customer fully releases and discharges Linkgroup from all claims asserted against Linkgroup by third parties owing to the execution of an order from the customer; the customer bears all costs accruing to Linkgroup in this connection.
2. The copyrights and the rights of reproduction to any sketches, drafts, originals, films, data, etc., produced by Linkgroup in connection with the order used remain the property of Linkgroup, provided this is permissible in law and no other agreement has been reached with the customer. This applies in particular to all source code developed by Linkgroup. If copyrights and rights of reproduction are transferred in accordance with an individual agreement, this only applies to rights accruing to Linkgroup itself from third parties to the extent that these third parties grant rights to Linkgroup.
XI. Place of performance and jurisdiction
The place of performance is Zurich. Provided no other agreement is reached, the ordinary courts in Zurich are competent to rule on disputes. Swiss law is applicable.