Terms of Delivery
1. Validity
1.1 The Veritaguar-TD shall apply to deliveries and services, (e.g. labels, security labels, Security Seal adhesive tape, readers, associated consultation and implementation services) (collectively "Delivery"), which Veritaguard provides on the basis of a contract concluded between Veritaguard and a business customer ("Customer"). The Delivery can also be the provision of the codes and print data for Veritaguard or encrypted QR-Codes (“Direct Print Data”) to qualified printshops designated by the Customers ("Printshops"). The Customer and Veritaguard collectively are hereinafter referred to as "Parties" or individually as "Party". The corresponding Veritaguard Terms of Delivery for the respective software shall apply to deliveries and services of software (e.g. Veritaguard web & app solutions).
1.2 Deviating terms from the Veritaguard-TD shall not apply unless Veritaguard has expressly agreed to them in writing.
1.3 The Veritaguard-TD shall apply in the context of a continuous business relationship also for future business between Veritaguard and the Customer, even if, in individual cases, Veritaguard did not expressly refer to the inclusion of the Veritaguard-TD at the time of conclusion of the contract.
1.4 Amendments to the contract shall be made in writing.
2. Offer
2.1 The description of the quality of the Delivery is exclusively and conclusively defined in the respective Technical Specification ("TS").
2.2 Veritaguard reserves all rights of ownership and copyright of documents included in the offer (e.g. illustrations, drawings, plans, construction documents etc.).
2.3 A pre-contractual performance during the offer stage that Veritaguard provides on request of the Customer (e.g. design development, artwork, samples, etc.) shall be invoiced by Veritaguard, even where no contract is subsequently entered into by the Parties.
2.4 Tools and printed documents produced by Veritaguard shall remain the property and in the possession of Veritaguard, even if they are invoiced separately to the Customer.
2.5 Offers from Veritaguard shall be non-binding and understood as a request for the submission of an order only. A contract shall not be concluded without the written confirmation of the order by Veritaguard, no later than at the time of delivery/provision of service by Veritaguard, and shall be based exclusively on the content of the order confirmation and/or these Veritaguard-TD.
2.6 Proofs and part drawings approved by the Customer shall be the sole decisive factors for the final fulfilment. If, at the Customer's request, the proofs or drawings corresponding to the original order are changed, the Customer shall bear the cost of the changes.
3. Terms of Delivery, Transfer of Risk
3.1 Delivery shall be 15th Floor, Yinhua Building, No. 2, Xingang West Road, Haizhu District, Guangzhou City, Guangdong Province, China ("Place of Delivery").
3.2 Prices are net prices in EUR (Euro), including the necessary packaging plus additional cost for packaging on request of the Customer and plus the current value added tax (VAT) in force at the time of delivery without further deductions.
3.3 For a Delivery less than EUR 1000.00 net price, Veritaguard reserves the right to charge a minimum quantity surcharge in the amount of EUR 50.00.
3.4 Partial delivery is allowed unless it is unreasonable to accept for the Customer.
3.5 The transfer of risk to the Customer shall take place at the time of Delivery at the Place of Delivery. This shall also apply to free delivery as well as to delivery that will be dispatched or collected on the request of the Customer. In the event the Delivery is dispatched, the Customer shall bear the costs incurred thereby (e.g. transport, insurance, customs).
3.6 Veritaguard has the right to increase or reduce the delivery of up to 10% more or less. This shall be invoiced at the agreed price.
3.7 The export of a Delivery by the Customer to countries outside the EU is only permitted with the explicit prior consent from Veritaguard.
3.8 For Direct Print Data, Veritaguard will enable the access of the designated Printshops to Direct Print Data using the Veritaguard Ordering Platform or an alternative exchange platform provided by Veritaguard. The Direct Print Data will be made available as a file to download for a duration of one month before it is deleted. If not agreed otherwise, the Direct Print Data will be activated automatically after upload on the respective platform by Veritaguard (including wasted codes). The Printshop will be notified of the provision of the Direct Print Data.
4. Reservation of Self-Delivery
In the event that the Delivery is not available because Veritaguard has not received deliveries from its own suppliers or the delivery stock of Veritaguard is depleted, Veritaguard is entitled to make a Delivery which is equivalent in quality and price to the contractually agreed Delivery. If this is not possible, Veritaguard may rescind the contract.
5. Terms of Payment, Setoff, Right of Retention
5.1 Unless otherwise agreed by the Parties, the invoice of Veritaguard is due in 30 days without any deduction.
5.2 The Customer can only set off a counter-claim or exercise the right of retention if its counter-claim is undisputed or confirmed by a final and unappealable judgement. In case of Material Defects (8.1) or Defects in Title (9.1) of the Delivery, the counter-claim of the Customer shall remain unaffected in accordance with 8.12.
5.3 If the Customer is in default of payment, suspension of payment, opening or applying for bankruptcy, insolvency or composition proceedings or rejection of such due to non-existing assets, protest of a bill, valuation of the Customer with a high business risk by a recognized information or rating agency, or in the event of comparable sustainable reasons which suggest the Customer's insolvency, Veritaguard is entitled to demand immediate payment of all claims which are not yet due. In addition, Veritaguard is entitled to make each Delivery subject to an advance payment.
5.4 For Direct Print Data, the following payment terms are applicable depending on whether the Printshop or the Customer is contractually obligated to pay the remuneration:
- In case the Printshop is obliged to pay Veritaguard the agreed remuneration per ordered code it is charged once the codes are uploaded on the platform (3.8). The Customer shall ensure that the Printshop fulfills its obligation to pay the remuneration for the codes. Typical printshop macule is considered in the price per code.
- In case the Customer is obliged to pay Veritaguard the agreed remuneration per ordered code it is charged once the codes ordered by the Printshop on behalf of the Customer are uploaded on the platform (3.8). Typical printshop macule is considered in the price per code.
6. Delivery Period
6.1 Observance of the agreed delivery period is conditional on the timely receipt of complete documents, necessary permits and approvals, especially of plans to be provided by the Customer as well as fulfilment of the agreed terms of payment and other obligations by the Customer (e.g. advance payment, partial payment). In case these conditions are not fulfilled on time, the delivery period shall be extended for Veritaguard accordingly; this shall not apply if Veritaguard is solely responsible for the delayed Delivery. The delivery period shall be interrupted for the duration of the inspection by the Customer (e.g. test proof, sample).
6.2 If non-observance of the delivery period is due to events such as natural disasters, pandemic, epidemic, mobilization, war, terrorist acts, computer virus and further attacks by third parties on the IT-system of Veritaguard despite compliance of Veritaguard with the safety precautions of the usual security measures, riot, strike, lock-out, impediments resulting from German, US-American and other applicable national, European or international foreign trade laws, breakdowns in production or other plant interruptions, traffic problems or other comparable circumstances for which Veritaguard is not responsible ("Force Majeure"), the delivery period of Veritaguard shall be extended reasonably. Should any event of Force Majeure last for a period of more than 60 calendar days, the Customer or Veritaguard shall be entitled to rescind the contract in whole or in part. In such case no Party shall have a right to seek damages against the other Party. This shall also apply if any event of Force Majeure occurs at the time when Veritaguard is in delay with the Delivery.
6.3 In the event that Veritaguard is responsible for a delayed Delivery and provided that the Customer can credibly establish that a damage for such delay has occurred, the Customer may seek liquidated damages of 0.5% for every completed calendar week of delay but in no event shall the aggregate of such damages exceed a total of 5% of the net price for that part of the delayed Delivery which due to the delay could not be put to the intended use by the Customer. The obligation to pay the liquidated damages requires proof by the Customer that any damage has occurred, but not of its amount. Veritaguard shall be entitled to provide evidence that the Customer suffered lower or no damage.
6.4 Further claims and remedies of the Customer due to the delayed Delivery in particular indirect or consequential damages, loss of profit or loss of production are excluded. This shall not apply in the event Veritaguard is subject to mandatory liability on account of intent, gross negligence or due to loss of life, bodily injury or damage to health.
6.5 Claims for damages due to the delayed Delivery by the Customer as well as claims for damages instead of performance or reimbursement which exceed the limits specified in 6.3 shall be excluded, even after expiry of the delivery period for the Delivery set by the Customer.
6.6 The Customer shall only be entitled to rescind the contract provided that Veritaguard is solely liable for the delayed Delivery and after reaching the maximum amount of compensation in 6.3 and the Customer has set an adequate delivery period to Veritaguard within which Veritaguard has to supply the Delivery and such delivery period has expired. A change in the burden of proof to the detriment of the Customer shall not be implied hereby.
6.7 At the request of Veritaguard the Customer shall declare within a reasonable period whether the Customer will rescind the contract due to the delayed Delivery or insist on the Delivery.
7. Retention of Title
7.1 The Delivery shall remain the property of Veritaguard until each and every claim against the Customer to which Veritaguard is entitled under its business relationship has been duly satisfied ("Secured Goods"). The Customer shall not damage, modify, remove, or make illegible any number, sign, nameplate, company and/or brand name or other marking affixed by Veritaguard. If the value of all the security rights of Veritaguard against the Customer exceeds the value of the secured claims by more than 10%, Veritaguard shall release a corresponding part of the security rights at the request of the Customer. Veritaguard shall have the right to choose which of the security rights shall be released.
7.2 The retention of title shall continue even if parts of claims of Veritaguard are included in current invoices and the balance has been drawn and accepted, unless the balance is settled.
7.3 For the duration of the retention of title, the Customer is prohibited from giving the Secured Goods in pledge or transferring the Secured Goods as security. In case of a seizure of the Secured Goods or other acts or interventions by any third party relating to the Secured Goods, the Customer shall immediately inform Veritaguard thereof in writing. If legitimate interest has been substantiated by Veritaguard, the Customer shall give Veritaguard the information necessary to assert the rights towards such third party and the Customer shall hand over the necessary documents to Veritaguard.
7.4 The resale of the Secured Goods by the Customer to its client in the ordinary course of business shall only be permissible on conditions that the Customer receives payment from its client or retains title so that the property in the Secured Goods is transferred to its client only after fulfilment of the client’s obligation to pay the Customer.
7.5 Should the Customer resell Secured Goods, the Customer assigns to Veritaguard herewith the claims (including VAT) the Customer will have against his clients out of the resale, including any collateral rights and all balance claims, as security, without any further special declarations being necessary by Veritaguard. If the Secured Goods are sold together with other items and no individual price has been agreed with respect to the Secured Goods, the Customer shall assign to Veritaguard such proportionate fraction of the total price as is attributable to the price of the Secured Goods invoiced by Veritaguard. Veritaguard herewith accepts such assignment. The duty of Veritaguard to release security rights shall remain unaffected.
7.6 If the Customer has sold its monetary claim as part of genuine factoring, then the claims of Veritaguard become due immediately and the Customer assigns to Veritaguard the claims that replaced the sold monetary claim against the factor and forwards his sales proceeds to Veritaguard without delay. Veritaguard herewith accepts the assignment.
7.7 In the event that the Customer is in breach of an obligation, in particular, a default of payment, Veritaguard is entitled to rescind the contract and to take back the Secured Goods, after the expiration of a reasonable time limit within which the Customer shall rectify the breach. The Customer is obliged to return the Secured Goods to Veritaguard. The legal provisions which dispense of the requirement to set a deadline in case of a serious and/or final refusal of performance shall remain unaffected.
7.8 In the event that the Customer is in breach of an obligation, in particular, a default of payment, the enforcement of retention of title and the taking back of the Secured Goods associated therewith does not require a rescission of the contract by Veritaguard. The aforementioned actions or seizure of the Secured Goods shall not constitute a rescission of the contract by Veritaguard, unless expressly stated by Veritaguard.
7.9 The Customer shall be allowed to process, transform, restructure and combine ("Processing" or “processed”) the Secured Goods with other products. The Processing shall be done for Veritaguard. The Customer shall hold the new product resulting from this Processing for Veritaguard with the due care of a diligent businessman. The new product shall be considered as Secured Goods.
7.10 The Parties are in agreement that in case the Secured Goods are processed with other goods which do not belong to Veritaguard, Veritaguard shall have co-ownership of the new product in proportion resulting from the ratio of the value of the processed Secured Goods subject to the value of the new product at the time of Processing. The new product shall be considered as Secured Goods.
7.11 The assignment of claims provision shall also apply to the new product. Such assignment is valid only up to the amount that equals the amount invoiced by Veritaguard for the processed Secured Goods.
7.12 The Customer shall be entitled to collect any outstanding receivables from the resale of Secured Goods until revocation by Veritaguard. In the event of an important reason, in particular delay in payment, suspension of payment, opening or applying for bankruptcy, insolvency or composition proceedings or rejection of such due to non-existing assets, protest of a bill, valuation of the Customer with a high business risk by a recognized information or rating agency, or in the event of comparable sustainable reasons which suggest the Customer's insolvency, Veritaguard shall be entitled to revoke the Customer's right to collect receivables for Secured Goods. In addition, upon prior warning that the assignment by way of security will be disclosed or that the assigned receivables will be utilized, and observing a reasonable period of time, Veritaguard may disclose the assignment by way of security, utilize the assigned receivables and demand that the Customer discloses the assignment by way of security to its clients. The duty of Veritaguard to release security rights shall remain unaffected.
8. Warranty for Material Defects
In case a Delivery does not match with the quality of the respective TS at the time of transfer of risk ("Material Defect"), at its discretion Veritaguard shall within the statute of limitations either repair free of charge or provide replacement free of charge ("Supplementary Performance").
8.2 The quality of the Delivery of Veritaguard is defined conclusively in the respective TS. Veritaguard shall not be liable for a Material Defect relating to qualities and characteristics not specifically mentioned in the TS. It is the sole liability of the Customer to examine the suitability of the Delivery for the intended use. In case the Customer requests additional tests which were not included in the respective TS, these shall be agreed separately in writing and paid by the Customer.
8.3 Claims for Material Defect of the Customer against Veritaguard are subject to a statue of limitations of 12 months upon delivery. In case of a delayed Delivery to the Customer due to reasons Veritaguard is not responsible for, the statue of limitations shall expire 18 months after the receipt by the Customer of the notification of the readiness for dispatch of the Delivery at the latest. This shall not apply in case of liability based on intent, gross negligence or due to loss of life, bodily injury or damage to health or fraudulent concealment of a Material Defect or non-compliance with guaranteed characteristics. The statutory provisions on suspension and recommencement of limitation period shall remain unaffected.
8.4 No further period of limitation begins with the Supplementary Performance by Veritaguard.
8.5 The Customer shall give a written notice of Material Defect to Veritaguard immediately. The notice of Material Defect shall include information relating to the data of the respective Delivery (e.g. order confirmation number, invoice number, roll number, pictures).
8.6 Insofar as the Customer grants Veritaguard no opportunity for Supplementary Performance within a reasonable period of time, Veritaguard is exempted from liability for Material Defect.
8.7 In the event that Supplementary Performance fails, the Customer shall be entitled to rescind the contract or to reduce the respective price of the Delivery.
8.8 There shall be no claim for Material Defect by the Customer in cases of an insignificant deviation from the agreed quality, negligible impairment of usability, natural wear and tear or damages which arose after transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable production facilities or operating resources, or particular external influences which were not specified in the contract. In case of printing executions, minor colour deviations do not constitute a Material Defect.
8.9 The Customer shall have no claim with respect to expenses incurred in the cause of Supplementary Performance, especially transport, road, labour and material costs, to the extent that expenses were increased because the Delivery was subsequently brought to another location than the Place of Delivery.
8.10 Claims for damages due to a Material Defect are conclusively regulated in 10.
8.11 Any further claims or claims other than those stipulated in 8. or 10. of the Customer against Veritaguard due to a Material Defect shall be excluded. The right of the Customer to rescind the contract shall remain unaffected.
8.12 In the case of a notice of Material Defect, the Customer may withhold payments to an amount that is in a reasonable proportion to the Material Defect. The Customer, however, may withhold payments only in case of a notice of Material Defect which meets the requirements of 8.5. The Customer has no right to withhold payments to the extent that its claim for Material Defect is time-barred. Any unjustified notice of Material Defect shall entitle Veritaguard to demand reimbursement of its expenses by the Customer.
9. Warranty for Defects in Title
9.1 Unless otherwise agreed, Veritaguard shall provide the Delivery free from industrial property rights, copyrights of third parties and/or any other third party right ("Third Party Right") with respect to the country at the Place of Delivery. If a third party asserts justified claims against the Customer due to an infringement of a Third Party Right by a Delivery which was used in conformity with the contract ("Defect in Title"), Veritaguard shall be liable to the Customer, within the stipulated limitation period in 8.3, as follows.
9.2 In the case of a liability according to 9.1, Veritaguard shall at its option and free of charge for the Customer either obtain a right to use the Delivery, modify the Delivery so as not to infringe the Third Party Right or replace the Delivery. If this is not possible for Veritaguard at reasonable conditions, the Customer shall have the right to rescind the contract or reduce the price. The provisions in 8.6 shall apply accordingly.
9.3 The fulfilment of the obligations in 9.2 shall be subject to the condition that the Customer immediately notifies Veritaguard in writing of the claims asserted by the third party, that it does not acknowledge an infringement and that the protective measures and settlement negotiations are exclusively reserved for Veritaguard. If the Customer ceases to use the Delivery to reduce the damage or for other important reasons, the Customer shall make it clear to the third party that the suspended use does not mean acknowledgement of an infringement of a Third Party Right.
9.4 Claims of the Customer shall be excluded if the Customer is liable for the infringement of the Third Party Right.
9.5 Claims of the Customer shall also be excluded if the infringement of the Third Party Right was caused by specific demands of the Customer, by use of the Delivery not foreseeable by Veritaguard or the Delivery being altered by the Customer or being used together with products not provided by Veritaguard.
9.6 In addition, the provisions of 8. shall apply accordingly to a Defect in Title.
9.7 Claims for damages due to a Defect in Title are conclusively regulated in 10.
9.8 Any further claims or claims other than those stipulated in 9. or 10. of the Customer against Veritaguard due to a Defect in Title shall be excluded. The right of the Customer to rescind the contract shall remain unaffected.
10. Other Liability, Damages
10.1 Unless otherwise specified in the Veritaguard-TD, including the following provisions, Veritaguard shall be liable in case of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
10.2 Veritaguard provides application guidelines and other advices to the best of its knowledge and therefore does not constitute any liability for damages by the Customer against Veritaguard. The Customer shall not be released from its obligation to examine the intended use of the Delivery at its sole responsibility. This shall also apply if the Customer’s intended use of the Delivery is known to Veritaguard.
10.3 Veritaguard is liable for damages, irrespective of the legal basis:
- in case of intent or gross negligence,
- in case of culpable loss of life, bodily injury or damage to health,
- in the event of non-compliance with guaranteed characteristics,
- in case of fraudulent concealment of a Material Defect or Defect in Title,
- in case of a claim of the Customer under the applicable mandatory product liability regulations (e.g. the German Product Liability Act) or
- for damages resulting from the culpable breach of a material contractual obligation (the fulfilment of which is the only way to ensure that the contract is properly implemented and that the other Party is allowed to rely on regularly.). In case of breach of a material contractual obligation by negligence other than gross negligence, the liability is limited to the replacement of the foreseeable, typically occurring damage.
10.4 In any other case the Customer shall have no claim for damages against Veritaguard.
10.5 The liability limitations resulting from 10. shall also apply in the case of a breach of an obligation by or in favour of persons whose fault is attributable to Veritaguard (e.g. personal liability of employees, personnel and other vicarious agents of Veritaguard), but not to the personal liability of legal representatives and of executives.
10.6 A claim for damages according to 10., which is based on Material Defect or Defect in Title, shall be time-barred in 12 months from Delivery, unless there is a liability according to 10.3.
10.7 A change in the burden of proof to the detriment of the Customer shall not be implied hereby.
11. Impossibility of Performance, Contract Adjustment
11.1 In case the supply of the Delivery is impossible, the Customer shall have the right to claim damages unless Veritaguard is not responsible for the impossibility. The right of the Customer to claim for loss or damages shall be limited to 10% of the net price of that part of the Delivery which due to the impossibility cannot be put to the intended use by the Customer. This limitation shall not apply in the event Veritaguard is subject to mandatory liability on account of intent, gross negligence or due to loss of life, bodily injury or damage to health. A change in the burden of proof to the detriment of the Customer shall not be implied hereby. The right of the Customer to rescind the contract shall remain unaffected.
11.2 The contract shall be reasonably adjusted in compliance with the principle of good faith where incidents of Force Majeure substantially change the commercial significance or the content of the Delivery or have a material adverse effect on the business of Veritaguard. Where this adjustment is not economically justifiable, Veritaguard shall have the right to rescind the contract. Veritaguard shall inform the Customer of the exercising of the rescission of the contract without delay upon awareness of the consequences of the incident, even if initially an extension to the delivery period had been agreed with the Customer.
12. Supply of the Customer; Services
12.1 The Customer shall shall incur liability for the use and transfer of décor, design, company logos, trademarks, shims and embossing tools, samples, drafts and similar design elements supplied by the Customer to Veritaguard ("Supply of the Customer") - irrespective of the data carrier - which infringe a Third Party Right. Specifically, the Customer shall also be responsible for possessing the legal authority to duplicate the ordered print execution. The Customer shall immediately indemnify and hold harmless Veritaguard from any corresponding claims of such third party.
12.2 The Customer shall deliver his Supply to the Place of Delivery at its expense. The costs of storage, maintenance, repair and disposal for its Supply shall be borne by the Customer.
12.3 The Customer shall reasonably support Veritaguard in the fulfilment of an ordered service. Support services include the provision of information or experiences that are relevant for the respective service. Should the Customer fail to do so, Veritaguard may not be able to provide the services in the agreed quality, time or for the agreed compensation.
12.4 Any property rights pertaining to Veritaguard services, especially copyrights of services provided, remain with Veritaguard.
12.5 Veritaguard shall grant the Customer those rights to use that are required for the contractual use of services.
12.6 If the Customer intends to grant rights to use for the provided services to third parties, the explicit prior consent from Veritaguard is required.
13. Confidentiality
13.1 Each Party shall not, without the prior written consent of the other Party, pass to third parties information, knowledge, templates, including such documents as illustrations, drawings, plans, construction documents ("Information") received from the other Party. This shall not apply to Information which at the time of receipt are generally known or were already known by the receiving Party without being obliged to maintain confidentiality or were transferred by a third party lawfully in possession thereof and who has the lawful power to disclose such Information or were independently developed by the receiving Party without using any Information of the disclosing Party. Information shall be returned by the receiving Party without delay if a contract is not awarded. A right of retention by the receiving Party is excluded.
13.2 A third party within the meaning of 13.1 shall not be deemed to be a company affiliated with Veritaguard as well as a person or company entrusted with the task of performance of the contract by Veritaguard insofar as they have been obliged to keep confidential in an equivalent manner.
13.3 Neither Party shall use the Information received from the other Party for purposes over and beyond the scope of the contract between the Parties without the express prior written consent of the other Party.
13.4 The obligation of confidentiality shall begin upon receipt of the Information and ends 5 years after the end of the business relationship.
14. Assignment
The assignment of a claim or of a right under the contract is permitted only with the prior written consent of the other Party. This shall not apply to a monetary claim.