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1 GENERAL - SCOPE OF APPLICATION

(1) The following general terms and conditions apply to all legal transactions of BARTENBACH Werbemittel GmbH & Co. KG, hereinafter referred to as "BWM", with its contractual partner, hereinafter referred to as "Customer". For all services and deliveries to purchasers as entrepreneurs in the sense of § 14 BGB (German Civil Code), the following terms and conditions of sale apply exclusively; conflicting or deviating terms and conditions of the purchaser are not recognised, unless BWM has expressly agreed to their validity in writing. The conditions of sale of BWM are also valid if the delivery to the purchaser is carried out without reservation in the knowledge of conflicting or deviating conditions of the purchaser. The terms of sale of BWM are also valid for all future orders of the purchaser to BWM following the first inclusion of these terms of sale, even if the validity of the terms of sale is not explicitly pointed out again in these subsequent orders.

(2) All agreements, which are made between BWM and the customer for the execution of this contract, are written down in this contract.

(3) Subsequent changes and additions to the contract must be made in writing.

  

2 OFFER - OFFER DOCUMENTS - CONCLUSION OF CONTRACT

(1) If the order is to be qualified as an offer according to § 145 BGB, BWM can accept this offer within 2 weeks.

(2) All offers of BWM are non-binding. Declarations of acceptance and orders require written confirmation to be legally effective. The information in the order confirmations regarding scope of delivery, appearance, performance, dimensions and weights are to be considered as approximate and do not represent guaranteed characteristics.

(3) The customer shall bear sole responsibility for artwork, printable data and other documents provided by the customer. A release declared by the customer for a special advertising medium and a print release are binding. If the customer does not object to a proof sent within 3 days, it shall become binding.

(4) The customer is liable for the fact that the documents/the artwork provided by him are free of rights of third parties and in particular that no copyrights, trademark, design, name or licence rights of third parties are violated. BWM is not obliged to check this. By placing the order, the customer indemnifies BWM upon first request from all claims that are made against BWM due to any infringement of rights. BWM is not obliged to accept orders or can withdraw from orders that involve an infringement of third party rights or harbour the risk of such infringements.

(5) BWM is authorised to make excess or short deliveries of up to 10% of the ordered goods. BWM reserves the right to charge a separate handling fee or a minimum quantity surcharge for orders of less than the minimum quantities stated in catalogues or advertising brochures. In case of non-delivery or delayed self-delivery and in cases of force majeure BWM is entitled to withdraw from the contract. Claims for compensation for the customer do not exist in these cases.

(6) The buyer is obliged to indicate in the order whether he resells the goods to a final consumer. In case of a breach of this obligation or in case of a sale of the goods to an end consumer contrary to the information in the order, the rights from § 478 BGB are considered as waived.

(7) BWM is authorised to carry out the assigned work itself or to commission vicarious agents/subcontractors in its own name.

  

3 PRICES - TERMS OF PAYMENT

(1) Unless otherwise stated in the order confirmation, the prices of BWM apply "ex shipping point", excluding packaging, freight, postage, insurance and other shipping costs; these will be invoiced separately.

(2) The statutory value added tax is not included in the prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.

(3) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory provisions regarding the consequences of default of payment shall apply.

(4) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he is only authorised to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

(5) BWM reserves the right to make the delivery of new customers or import orders dependent on advance payment. If deliveries or partial deliveries are not paid on time, BWM reserves the right to postpone the delivery of current orders or new orders or to make it dependent on prepayment.

(6) If the buyer does not accept a duly ordered and ready for delivery goods even after setting a reasonable grace period, BWM is optionally entitled to demand fulfilment of the contract or to withdraw from the contract and to claim damages for non-performance.

(7) In case of an unforeseeable change of customs duties, value added tax, exchange rates, freight costs, insurance premiums and other incurred charges, BWM is entitled to change the price according to the change in favour and at the expense of the buyer, without triggering a right of withdrawal.

 

4 PERFORMANCE AND DELIVERY TIMES

(1) The performance and delivery times of BWM are generally non-binding, unless they have been expressly agreed as binding.

(2) The beginning of the delivery time stated by BWM requires the clarification of all technical questions. In particular, delivery times are only valid after receipt of the complete documents, data and other services to be provided by the customer at BWM, in particular only after final print approval of the layout or print sample.

(3) The compliance with the delivery obligation requires the timely and proper fulfilment of the obligation of the customer. The defence of non-performance of the contract remains reserved.

(4) If the customer is in default of acceptance or if he culpably violates other obligations to co-operate, BWM is entitled to demand compensation for the resulting damage, including any additional expenses. Further claims remain reserved.

(5) If the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the purchased item is transferred to the customer at the time when he is in default of acceptance or debtor's delay.

(6) If an ordered item cannot be delivered due to force majeure or if BWM is not supplied by its supplier without fault despite his contractual obligation or if an ordered item cannot be delivered, BWM is entitled to withdraw from the contract. In this case BWM will immediately inform the customer that the ordered goods are no longer available and will immediately refund any services already rendered.

(7) If the delivery is delayed due to force majeure or because BWM is not supplied in time by its supplier despite his contractual obligation, there is no delay in performance, unless the delay is based on a circumstance for which BWM is responsible. In case of a delay in delivery BWM will inform the customer immediately.

(8) Furthermore, BWM is liable according to the legal regulations, if the delay in delivery is based on an intentional or grossly negligent breach of contract for which BWM is responsible or on a breach of essential contractual obligations (so-called cardinal obligations); a fault of the representatives or vicarious agents is to be attributed to BWM. If the delay in delivery is not based on an intentional or grossly negligent breach of contract for which BWM is responsible, the liability for damages is limited to the foreseeable, typically occurring damage.

(9) Apart from that, BWM is liable in case of a delay in delivery within the scope of a lump-sum compensation for delay amounting to a maximum of 10 % of the delivery value.

  

5 TRANSFER OF RISK - PACKAGING COSTS - SHIPPING

(1) Unless otherwise stated in the order confirmation, delivery "ex place of dispatch" is agreed.

(2) If, at the request of the Buyer, the goods are delivered to a place other than the Seller's place of fulfilment, the risk shall pass to the Buyer when the goods are handed over to the forwarding agent, carrier or other person designated to carry out the shipment.

(3) Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back. The customer is obliged to dispose of the packaging at his own expense.

(4) If the buyer wishes, BWM will cover the delivery by a transport insurance; the costs incurred in this respect are borne by the buyer.

(5) The buyer is obliged to check immediately if the packaging is damaged and the goods are free of defects.

(6) The choice of the shipping route and the shipping method is made by BWM according to the best economic circumstances, without liability for a possibly more favourable shipping method. Special modes of dispatch have to be communicated by the customer in writing.

  

6 LIABILITY FOR DEFECTS

(1) Claims for defects on the part of the customer presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). The complaint period is a maximum of 3 working days after receipt of the goods. The notification of defects must be made in writing and must precisely describe the defective condition and its extent. For improper storage of the delivered goods at the customer any warranty is excluded.

(2) BWM delivers the ordered goods in customary quality. In case of a purchase by sample, the previous sampling is decisive for the quality to be maintained. Reasonable changes caused by technical innovation or further development and by the production are accepted by the customer as contractual.

(3) As far as there is a defect of the purchased item, BWM is optionally entitled to subsequent fulfilment in the form of a removal of defects or the delivery of a new, defect-free item. In the case of rectification of defects, BWM is obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.

(4) If the subsequent fulfilment fails, the customer shall be entitled to demand withdrawal from the contract or a reduction in price at his discretion. The return of rejected goods requires the prior consent of BWM.

(5) BWM is liable according to the legal regulations, if the customer asserts claims for damages, which are based on intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents. As far as BWM is not accused of intentional breach of contract, the liability for damages is limited to the foreseeable typically occurring damage.

(6) BWM is liable according to the legal regulations, as far as an essential contractual obligation is culpably violated; in this case, however, the liability for damages is limited to the foreseeable typically occurring damage.

(7) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act or under a guarantee promise.

(8) Unless otherwise stipulated above, liability is excluded.

(9) The limitation period for claims for defects is 12 months, calculated from the transfer of risk. In the case of Far East goods and so-called cent articles, the warranty period shall be limited to the usual service life for the corresponding article, with a maximum of 12 months, calculated from the transfer of risk.

(10) The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.

(11) In the event of a sale to an end consumer within the meaning of the BGB, the statutory provisions shall apply with regard to liability for defects.

 

7 OVERALL LIABILITY

(1) Any further liability for damages other than that provided for in § 7 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages due to culpa in contrahendo, due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with § 823 BGB.

The exclusion of liability does not apply if BWM is liable due to intent, gross negligence or from a guarantee promise or according to the product liability law or if an essential contractual obligation is violated as well as in case of injury to life, body and health.

(2) As far as the liability for damages against BWM is excluded or limited, this also applies with regard to the personal liability for damages of the employees, workers, co-workers, representatives and vicarious agents of BWM.

  

8 RETENTION OF TITLE

(1) BWM reserves the ownership of the purchased goods until all payments from the delivery contract have been received. In case of behaviour of the buyer contrary to the contract, especially in case of default of payment, BWM is entitled to take back the purchased goods. The taking back of the purchased goods by BWM does not constitute a cancellation of the contract, unless BWM has expressly declared this in writing. The seizure of the purchased item by BWM is always a cancellation of the contract. After taking back the purchased goods, BWM is authorised to sell them, the proceeds of the sale are to be credited against the liabilities of the buyer - less reasonable costs of sale.

(2) In case of seizure or other interventions of third parties, the buyer has to inform BWM immediately in written form, so that an action according to § 771 ZPO can be filed. As far as the third party is not able to reimburse BWM the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the buyer is liable for the resulting loss.

(3) The buyer is entitled to resell the purchased goods in the ordinary course of business; however, he already now assigns all claims in the amount of the final invoice amount (including VAT) of the claim of BWM, which accrue to him from the resale against his customers or third parties, regardless of whether the purchased goods have been resold without or after processing. The buyer remains authorised to collect this claim even after the assignment. The authorisation of BWM to collect the claim itself remains unaffected. However, BWM undertakes not to collect the claim as long as the buyer fulfils his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of bankruptcy or composition or insolvency proceedings has been filed or payments have been suspended. However, if this is the case, BWM can demand that the buyer informs BWM about the assigned claims and their debtors, gives all information necessary for the collection, hands over the corresponding documents and informs the debtors (third parties) about the assignment.

(4) BWM undertakes to release the securities to which it is entitled at the request of the buyer insofar as the realisable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at the discretion of BWM.

  

9 DATA PROTECTION

(1) If BWM provides the customer with personal data of his employees in the context of the execution of the contract or if the customer obtains knowledge of this personal data in any other way, the following provisions apply. Personal data disclosed in the aforementioned manner and not processed on behalf of BWM may only be processed by the customer for the execution of the contract and may not - except where permitted by law - be processed in any other way, in particular disclosed to third parties and/or analysed for own purposes and/or used to create profiles.

(2) The Customer may further process the personal data, in particular pass it on to its group companies for the fulfilment of the relevant contract, insofar as this is permitted by law. The Customer shall ensure that the personal data is only made accessible to those employees of the Customer who are deployed for the performance of the relevant contract and only to the extent necessary for the performance of this contract. The Customer shall design its internal organisation in such a way that it meets the requirements of the applicable data protection law, in particular by taking technical and organisational measures to adequately secure the personal data against misuse and loss.

(3) The customer does not acquire any rights to the personal data and is obliged to correct, delete and/or restrict the processing of the personal data at any time in accordance with the legal requirements. Rights of retention in relation to personal data are excluded. In addition to his legal obligations, the customer informs BWM immediately, at the latest within 24 hours, about a breach of the protection of personal data, especially in case of loss. Upon termination of the relevant contract, the customer will delete the personal data, including all copies made, in accordance with the legal requirements.

  

10 OTHER

(1) BWM and its sub-suppliers are entitled to affix the company logo or the company name on the delivered goods and to use the delivered goods for commercial purposes, especially for display in the business premises of BWM and for illustration in catalogues and brochures of all kinds.

(2) BWM is authorised to store the data received in connection with the business transaction and to pass them on to the contractual partners involved in the transaction.

(3) Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions or the underlying contract.

  

11 PLACE OF JURISDICTION - PLACE OF FULFILMENT

(1) The exclusive place of jurisdiction for all disputes arising from the business relationship with merchants, legal entities under public law, special funds under public law or customers without a general place of jurisdiction in Germany is Mainz.

(2) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

(3) Unless otherwise stated in the order confirmation, the place of fulfilment is the place of dispatch of the goods.