General Terms and Conditions & Customer Information
Table of contents
1) Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") of Werbelineale.com - Owner: Mathias Wickles (hereinafter referred to as "Seller"), apply to all contracts for the delivery of goods, which an entrepreneur (hereinafter referred to as "Customer") concludes with the Seller with regard to the goods presented by the Seller in his online shop. The inclusion of the Customer's own terms and conditions is hereby objected to, unless otherwise agreed in writing.
1.2 These GTC shall also apply exclusively if the Seller makes the delivery to the Customer without any special reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these GTC.
1.3 An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
1.4 For the purposes of these GTC, an entrepreneur is also a public authority or other institution under public law if, when concluding the contract, it is acting exclusively in accordance with private law.
2) Conclusion of contract
2.1 The product descriptions presented in the Seller's online shop do not constitute binding offers on the part of the Seller, but serve for the submission of a binding offer by the customer.
2.2 The customer can submit the offer via the online order form integrated in the Seller's online shop. In doing so, after placing the selected goods and/or services in the virtual shopping cart and going through the electronic ordering process, the customer submits a non-legally binding request with regard to the goods and/or services contained in the shopping cart by clicking the button that concludes the ordering process.
2.3 The seller now contacts the customer and accepts the print data. The Seller then issues an invoice which constitutes a legally binding sales offer. If the order is now clear and the customer has paid a deposit of 80% of the invoice amount, the purchase contract is deemed to have been concluded.
If the seller does not accept the customer's request within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the customer is no longer bound by his declaration of intent.
2.4 When an offer is made via the Seller's online order form, the text of the contract shall be stored by the Seller after the conclusion of the contract and transmitted to the Customer in text form (e.g. e-mail, fax or letter) after the Customer has sent his order. The Seller shall not make the text of the contract accessible beyond this. If the customer has set up a user account in the Seller's online shop before sending his order, the order data will be archived on the Seller's website and can be accessed by the customer free of charge via his password-protected user account by providing the relevant login data.
2.5 Only the German and English languages are available for the conclusion of the contract.
2.6 The order processing and contacting usually take place via e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct so that e-mails sent by the seller can be received at this address. In particular, if SPAM filters are used, the customer must ensure that all e-mails sent by the seller or by third parties commissioned by the seller to process the order can be delivered.
2.7 If the parties have agreed special conditions in writing, these shall in principle not apply to simultaneously ongoing and future contractual relationships with the customer.
2.8 In the event of the Customer's economic inability to fulfil its obligations towards the Seller, the Seller may terminate existing exchange contracts with the Customer by rescinding them without notice. This shall also apply if the customer files for insolvency. § Section 321 of the German Civil Code (BGB) and Section 112 of the German Insolvency Code (InsO) shall remain unaffected. The customer shall inform the seller in writing at an early stage of any impending insolvency.
3) Prices and terms of payment
3.1 Unless otherwise stated in the Seller's product description, the prices quoted are net prices which are subject to VAT at the statutory rate. Prices are understood to be free domicile within the EEA - excluding shipping costs. Customs duties and levies will be charged separately, if applicable.
3.2 In the case of deliveries to countries outside the European Union, further costs may be incurred in individual cases for which the Seller is not responsible and which are to be borne by the Customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of funds if the delivery is not made to a country outside the European Union, but the customer makes the payment from a country outside the European Union.
3.3 The customer can conveniently settle the invoice by bank transfer.
3.4 If payment in advance by bank transfer has been agreed, payment is due immediately after conclusion of the contract, unless the parties have agreed on a later due date.
3.5 A payment shall be deemed to have been received as soon as the equivalent amount has been credited to one of the Seller's accounts. In the event of default in payment, the Seller shall be entitled to interest on arrears at a rate of 10 percentage points above the respective base rate. The Seller's other statutory rights in the event of a default in payment by the customer shall remain unaffected. If claims are overdue, incoming payments shall first be credited against any costs and interest, then against the oldest claim.
4) Delivery and shipping conditions
4.1 The delivery of goods shall be effected by dispatch to the delivery address indicated by the customer, unless otherwise agreed. The delivery address specified in the Seller's order processing shall be decisive in the processing of the transaction.
4.2 In the case of goods delivered by forwarding agent, delivery shall be made "free kerbside", i.e. to the public kerbside nearest to the delivery address, unless otherwise stated in the shipping information in the Seller's online shop and unless otherwise agreed.
4.3 The Seller is entitled to make partial deliveries insofar as this is reasonable for the Customer. In the event of permissible partial deliveries, the Seller shall also be entitled to issue partial invoices.
4.4 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery. This shall only apply in the event that the Seller is not responsible for the non-delivery and the Seller has, with due diligence, concluded a specific covering transaction with the supplier. The seller shall make all reasonable efforts to procure the goods. In the event of non-availability or only partial availability of the goods, the customer will be informed immediately and the consideration will be refunded without delay.
4.5 In the event that the shipment of the goods to the customer is delayed for reasons for which the customer is responsible, the transfer of risk shall take place as soon as the customer is notified that the goods are ready for shipment. Any storage costs incurred after the transfer of risk shall be borne by the customer.
4.7 Self-collection is not possible for logistical reasons.
5) Force majeure
In the event of force majeure affecting the performance of the contract, the Seller shall be entitled to postpone delivery for the duration of the hindrance and, in the event of longer-term delays, to withdraw from the contract in whole or in part, without this giving rise to any claims against the Seller. Force majeure shall be deemed to be all events unforeseeable by the Seller or such events which - even if they were foreseeable - are beyond the Seller's control and whose effect on the performance of the contract cannot be prevented by the Seller's reasonable efforts. Any statutory claims of the customer shall remain unaffected.
6) Delay in performance at the request of the customer
If dispatch or delivery of the goods is delayed at the customer's request by more than one month after notification of readiness for dispatch, the customer may be charged storage costs of 0.5% of the purchase price for each additional month or part thereof, but not more than a total of 5% of the purchase price. The contracting parties shall be at liberty to prove higher or lower damages.
7) Retention of title
7.1 The Seller retains title to the delivered goods until the purchase price owed has been paid in full. Furthermore, the seller retains ownership of the delivered goods until all his claims arising from the business relationship with the customer have been fulfilled.
7.2 In the event that the delivered goods are processed, the seller shall be deemed to be the manufacturer and shall acquire ownership of the newly created goods. If the processing is carried out together with other materials, the seller acquires ownership in the ratio of the invoice values of his goods to that of the other materials. If, in the event of the Seller's goods being combined or mixed with an item belonging to the customer, the latter is to be regarded as the main item, co-ownership of the item shall pass to the Seller in the ratio of the invoice value of the Seller's goods to the invoice value or, in the absence of such, to the market value of the main item. In such cases, the customer shall be deemed to be the custodian.
7.3 The customer may neither pledge nor assign by way of security items subject to retention of title or reservation of rights. The customer is only permitted to resell the goods in the ordinary course of business as a reseller on condition that the customer has effectively assigned to the seller its claims against its customers in connection with the resale and the customer transfers ownership to its customer subject to payment.
7.4 The customer shall immediately notify the seller of any access to the goods owned or co-owned by the seller or to the assigned claims. He shall immediately pay to the Seller any amounts assigned to the Seller and collected by him, insofar as the Seller's claim is due.
7.5 If the value of the Seller's security interests exceeds the amount of the secured claims by more than 10%, the Seller shall release a corresponding proportion of the security interests at the request of the customer.
8.1 It is expressly agreed that we are entitled to make deviations in colour, dimensions and construction with regard to the contractual goods, insofar as these deviations do not prevent the technical contractual purpose of the goods. We reserve the right to deviations in colour and different degrees of surface gloss due to the nature of the raw material, as well as material-related tolerances in thickness, format and cuts. Such deviations in colours and dimensions as well as constructions shall not be deemed defects in the legal sense.
8.2 In the case of colour reproductions in all manufacturing processes, minor deviations from the original cannot be objected to. The same applies to the comparison between other originals (e.g. digital proofs, press proofs) and the final product. Furthermore, liability for defects that do not or only insignificantly affect the value or usability is excluded.
8.3 Colour deviations and material tolerances customary in the trade shall not constitute a defect.
8.4 The contractual goods shall be deemed to be free of defects insofar as they have the agreed quality and / or are suitable for the agreed purpose.
9) Liability for defects / warranty
If the purchased item is defective, the provisions of the statutory liability for defects shall apply. The following shall apply in deviation from this
9.1 Claims for defects shall not arise in the event of natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials or as a result of special external influences which are not assumed under the contract. If the customer or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences, unless the customer can prove that the defect complained of was not caused by these modifications or repair work.
9.2 In the case of new goods, the limitation period for claims for defects shall be one year from delivery of the goods.
9.3 The above-mentioned limitations of liability and shortening of the period of limitation do not apply to
to claims for damages and reimbursement of expenses of the customer,
in the event that the Seller has fraudulently concealed the defect, and
to the right of recourse according to § 445a BGB.
9.4 In the event of subsequent performance, the Seller shall have the right to choose between repair or replacement.
9.5 If a replacement delivery is made within the scope of liability for defects, the limitation period shall not start again.
9.6 If subsequent performance is effected by way of a replacement delivery, the customer shall be obliged to return the goods first delivered to the seller within 30 days. The return package must contain the reason for the return, the customer's name and the number assigned for the purchase of the defective goods, which enables the Seller to assign the returned goods. As long as and insofar as the assignment of the return is not possible for reasons for which the customer is responsible, the seller is not obliged to accept returned goods and to refund the purchase price. The costs of a new shipment shall be borne by the customer.
9.7 If the customer acts as a merchant within the meaning of § 1 of the German Commercial Code (HGB), he shall be subject to the commercial obligation to examine the goods and to give notice of defects pursuant to § 377 of the German Commercial Code (HGB). If the customer fails to comply with the notification obligations regulated therein, the goods shall be deemed to have been approved.
The Seller shall be liable to the customer for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:
10.1 The Seller shall be liable without limitation for any legal reason
in the event of intent or gross negligence,
in the event of intentional or negligent injury to life, limb or health,
on the basis of a guarantee promise, insofar as nothing else is regulated in this respect,
on the basis of mandatory liability such as under the Product Liability Act.
10.2 If the Seller negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited pursuant to the preceding clause. Material contractual obligations are obligations which the contract imposes on the Seller according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place and compliance with which the customer may regularly rely on.
10.3 In all other respects, any liability on the part of the Seller is excluded.
10.4 The above liability provisions shall also apply with regard to the Seller's liability for its vicarious agents and legal representatives.
Claims of the customer against the seller shall become statute-barred - with the exception of the claims regulated under the item "Liability for defects / warranty" - one year after knowledge of the facts giving rise to the claim.
12) Retention, assignment
12.1 The customer's rights of retention and rights to refuse performance are excluded unless the seller does not dispute the underlying counterclaims or these have been legally established.
12.2 Assignment by the customer of claims arising from the contract concluded with the customer, in particular assignment of any claims for defects by the customer, is excluded.
13) Special conditions for the processing of goods according to certain specifications of the customer
13.1 If, according to the content of the contract, the Seller, in addition to the delivery of the goods, also owes the processing of the goods according to certain specifications of the Customer, the Customer shall provide the Seller with all content required for the processing, such as texts, images or graphics in the file formats, formatting, image and file sizes specified by the Seller and shall grant the Seller the rights of use required for this purpose. The customer alone shall be responsible for the procurement and acquisition of rights to this content. The customer declares and assumes responsibility that he has the right to use the content provided to the seller. In particular, he shall ensure that no rights of third parties are infringed thereby, in particular copyrights, trademark rights and personal rights.
13.2 The Customer shall indemnify the Seller against any claims of third parties which the latter may assert against the Seller in connection with an infringement of their rights by the contractual use of the Customer's content by the Seller. In this context, the customer shall also bear the reasonable costs of the necessary legal defence, including all court costs and lawyers' fees in the statutory amount. This shall not apply if the customer is not responsible for the infringement.
13.3 The Seller reserves the right to refuse processing orders if the content provided by the Customer for this purpose violates statutory or official prohibitions or offends common decency. This applies in particular to the provision of anti-constitutional, racist, xenophobic, discriminatory, offensive, youth-endangering and/or violence-glorifying content.
14.1 We reserve the copyrights to all documents and objects provided to the client in connection with the placing of the order, such as offers, drawings, drafts, plans, sketches, calculations (in each case also in digital/electronic form, in particular as EDP files) etc.. These documents may not be made accessible to third parties unless we give our express written consent to do so.
14.2 In the event of non-acceptance of offers, the interested party shall immediately and completely delete all documents provided by us, such as sketches, drafts, etc. in any form, e.g. also digital/electronic.
14.3 We shall be entitled to a right of retention in accordance with § 369 of the German Commercial Code (HGB) in respect of drawings, materials, samples, colour swatches, raw materials and other items supplied by us until all claims due under the business relationship have been met in full.
14.4 In the event of a culpable infringement of section IX. 1. or 2. a contractual penalty of EUR 5,000.00 shall be incurred for each infringement. We expressly reserve the right to claim any further damages, e.g. due to copyright infringement.
15) Commercial customs
15.1 In commercial transactions, the trade customs, in particular those of the printing industry, shall apply, e.g. no obligation to surrender intermediate products such as data, lithos or screens which are produced for the manufacture of the final product owed, unless a different order has been placed.
15.2 The operating items used by us for the production of the contractual product, in particular printing plates, lithographs, screens and other items, shall remain our property, even if they are invoiced separately, and shall not be delivered unless otherwise expressly agreed in writing.
16) Imprint, publication of product images
16.1 With the consent of the principal, we may refer to our company in a suitable manner on the contractual products (see Product Safety Act). The principal may only refuse consent if he has an overriding interest in this.
16.2 We reserve the right to use samples and illustrations of products manufactured by us for our catalogues, Internet and sales activities, unless customer protection has been expressly agreed in writing.
17) Applicable law, place of jurisdiction
17.1 All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the laws on the international sale of movable goods.
17.2 If the customer acts as a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the Seller's registered office. If the customer has its registered office outside the territory of the Federal Republic of Germany, the Seller's registered office shall be the exclusive place of jurisdiction for all disputes arising from this contract. In the above cases, however, the Seller shall in any case be entitled to bring the matter before the court at the Customer's place of business.