Printable versionGENERAL TERMS AND CONDITIONS
SOURCE Gesellschaft für verkaufsfördernde Produkte mbH
1. Preamble
SOURCE Gesellschaft für verkaufsfördernde Produkte mbH (referred to as “SOURCE” below) offers its customers complete creative solutions in the area of marketing. This particularly includes the development, design and procurement of promotional items and advertising materials. In this respect, SOURCE carries out promotional item/advertising material management. SOURCE supplies goods to trade customers only (not to end-customers).
To complement other sales channels, SOURCE operates an online shop via its homepage. This online shop is also exclusively intended for use by companies and is expressly not for end-customers. A customer using SOURCE’s online shop confirms by his use of it, and on submission of an order there at the latest, that he is a commercial trader and not an end-customer (consumer).
2. General
2.1
These provisions conclusively govern – notwithstanding being subject to the relevant statutory regulations – the legal relationships between SOURCE and its customers. The customer acknowledges that these provisions are binding, even for future transactions with SOURCE.
2.2
These terms are final. Any provisions of the customer which differ from these regulations shall not be taken into consideration and are hereby expressly rejected. Furthermore, agreements in excess of these regulations do not exist. Such agreements must be in writing for their valid inclusion.
2.3
These provisions apply exclusively in their use with respect to customers who are not consumers (cf. point 1 of these General Terms and Conditions).
2.4
SOURCE reserves the right to make changes, unilateral ones also, to these provisions and/or to individual sections of these provisions. The respective version of the terms and conditions that is valid at the time shall apply, based on the point in time when the contract is concluded.
3. Contract conclusion
3.1
Products and services offered by SOURCE in catalogues and/or via the online shop shall be considered unbinding invitations to treat for which the customer must make an offer (“invitatio ad offerendum”). As such, the specifications and more detailed definitions given by SOURCE in each case for the products and services on offer are non-binding. A declaration of intent from the customer with the aim of concluding a contract always represents an offer. This is binding for the customer, provided SOURCE has the required specification and quantity of products and services ordered by him in stock or that they can be delivered within an appropriate period of time. If the customer does not receive a message from SOURCE confirming this within 14 days of submission of the offer and SOURCE has not yet begun executing the order, the offer is no longer binding for the customer.
3.2
Confirmation from SOURCE that it has received an order/offer should not be considered a declaration of acceptance.
3.3
Declarations of intent given by SOURCE in the course of the contract conclusion are always given with the caveat that it itself receives correct and timely deliveries from its sub-suppliers, unless SOURCE is itself responsible for any incorrect delivery or a non-delivery. If executing a contract should represent an impossibility for SOURCE – due to the non-availability of a particular product, for example - SOURCE shall immediately inform the customer of this. Where applicable, any counter-performance already carried out – in full or in part - shall be immediately refunded.
3.4
The customer can be invoiced for advance services carried out on request of the customer within the framework of the initiation of a contractual relationship (designs, drafts, etc.), giving consideration to the amount of time involved, even if a contract is not subsequently finalised between the parties, provided SOURCE is not responsible for this.
Regardless of the above regulation, SOURCE, instead of insisting on fulfilment of the contract, can request a flat-rate of 10% of the final net invoice amount which could have been expected as reimbursement of expenses for services performed in trust of a contractual relationship actually existing if the contract is then not executed, regardless of the reason given for this. As a basic principle, the customer is free to prove that SOURCE’s losses were lower or non-existent in a particular case.
If SOURCE carries out advance services of the type described above, the results of this must be approved by the customer following inspection before further implementation of the contract. The inspection period shall be limited to two weeks from the customer’s receipt of the results. Once the inspection period expires, approval shall be considered given.
3.5
Pricing information given by SOURCE is quoted without statutory VAT at its respective level at the time. Postage and packaging charges are not included.
3.6
If the customer uses the online shop run by SOURCE, the customer waives the right to receive technical means for identifying and correcting any input errors prior to making his offer (Section 312 e para. 1 no. 1 of the German Civil Code (BGB)). Furthermore, the customer waives the right to adherence to the obligations pursuant to Section 312 e para. 1 no. 3 of the German Civil Code and Section 3 of the German Civil Code Information Ordinance (BGB-InfoV).
4. Despatch, delivery, transfer of risk
4.1
Delivery - provided the customer requires such – shall take place on account or on prepayment unless the parties have agreed to another payment method.
4.2
The customer is responsible for the costs which arise in the course of the despatch (postage and packaging charges).
4.3
SOURCE is entitled to increase prices for the services it is to perform in accordance with the contract in accordance with a general increase in costs if there is more than six weeks between the contract conclusion and the agreed delivery date and if wages, material costs or market acquisition prices increase or exchange rates change following this and before completion.
4.4
SOURCE is responsible for selecting the company assigned with the consignment of the goods. This selection shall be made in the interest of the customer following careful and diligent examination.
4.5
Once the goods are handed over to the company assigned to transfer them, SOURCE shall have fulfilled its delivery obligations. At the same point in time, the risk for any damage arising to the goods transfers to the customer.
4.6
For technical reasons, SOURCE reserves the right to increase or decrease the delivery by up to 10%.
Depending on the type of item and production volume.
5. Warranty
5.1
SOURCE shall fulfil its contractual obligations with all appropriate care and in the interest of the customer. The parties are aware that there may be a marginal increase or decrease in the delivery of up to 10% for production reasons. Furthermore, a merely minor reduction in the usability shall remain out of consideration and does not entitle the customer to enforce any warranty rights.
5.2
SOURCE guarantees that the products and services provided by it shall have the agreed quality on transfer of risk or - if an agreement on quality has not been made - that the products and services shall be suitable for their intended use as per the contract or for their usual use and shall have a level of quality which is customary for equivalent items and which the customer could expect given the type of item. A warranty in excess of this is not given. Furthermore, SOURCE shall not grant a guarantee of any kind.
5.3
SOURCE shall make every effort to process the contract as quickly as possible. However, it will not issue any warranty for particular delivery deadlines unless a particular delivery date is expressly guaranteed by SOURCE in writing.
5.4
On receipt of the products supplied by SOURCE, the customer is obliged to immediately inspect these with the appropriate care. SOURCE must be immediately notified of any defects, and within 7 days at the latest of obtaining this knowledge. The same applies to those defects which can only be detected at a later point in time. If there is no notification of defect within a deadline of 7 days, the delivered goods shall be considered approved.
5.5
If there is a defect for which SOURCE is responsible, SOURCE shall be free to rectify the defect at its own cost (rectification of defects) or to deliver a replacement in exchange for the defective good. If the rectification of the defect fails twice, the customer can decide to either withdraw from the contract or to demand a reduction in the purchase price.
5.6
The costs which arise in the course of the rectification of the defect, particularly toll and transport costs, shall only be borne by SOURCE if the customer has not brought the products delivered to him to another location than the location to which the products were initially sent. SOURCE shall bear the costs of a replacement delivery. Subject to contrary agreement between the parties, the replacements shall in principle be delivered to the location where the products were initially sent.
5.7
The warranty period shall last for one year following the delivery of the respective products concerned (as per the contract) to the customer.
6. Liability
6.1
SOURCE shall only be liable for losses arising for the customer as a result of intent or gross negligence. Any liability in this is limited to foreseeable damage which may typically arise. In particular, no liability can be assumed for circumstances unrepresentative of the actual contractual purpose. Likewise, SOURCE shall not be liable in the case of slightly negligent breach of insignificant contractual obligations and/or insignificant secondary obligations arising from the contract.
6.2
Within the framework of implementing the contract, SOURCE shall not accept any liability for ensuring that the execution of the customer’s order does not breach statutory provisions, especially that no third-party rights are being breached or competition law guidelines affected. The customer is responsible in his own interest for checking in advance and ensuring that the services and products commissioned from SOURCE are legally defensible. The customer shall release SOURCE to the full extent from claims in relation to this.
SOURCE shall not be liable for losses due to merely slight negligence on the part of auxiliary agents or statutory representatives.
Any liability shall also only exist in the relationship to the customer as a contract partner. Third parties who are not part of the contract concluded between SOURCE and the customer shall not be entitled to make a claim in any situation.
6.4
The limitation period for claims against SOURCE which are not based on premeditated behaviour on the part of SOURCE shall be one year.
7. Payment conditions, (extended) retention of title
7.1
Once a contract exists, SOURCE is entitled to request in advance from the customer the final invoice amount that is expected or a lower amount at SOURCE’s discretion and to only begin manufacturing/commissioning the contract goods once the relevant payment has been received. SOURCE shall particularly avail of this right in relation to new customers. In this respect, SOURCE points out that the items/advertising materials that are the object of the contract relate to goods which are to be created individually for the respective customer and in respect of which SOURCE regularly cannot perform the service in advance.
If the contract has definable partial services, such as, for example but not exclusively, the formulation of concepts or the like, partial payments towards the total cost shall fall due following their respective performance in accordance with the ratio of the partial service to the overall payment that is to be made. SOURCE is entitled to demand this without prejudice to point 7.1, i.e. particularly in a situation where the final invoice amount that is expected has not been requested in advance by SOURCE.
7.3
Payments in advance from the customer as per points 7.1 and 7.2 above shall be offset against the final account settlement. Once the risk is transferred, the (rest of the) amount to be paid by the customer will be due for immediate payment without discount. 30 days at the latest hereafter, the customer shall find himself in default of payment. The customer must pay SOURCE for the interest on arrears which arises plus 8 percentage points above the respective base interest rate (interest on arrears).
7.4
All of the goods delivered to the customer shall remain the property of SOURCE until they have been paid for in full. The customer shall be fully liable for such goods that are still the property of SOURCE.
7.5
The buyer is entitled to use the products he receives himself or to sell them in a regular business transaction. However, this permission to use and sell the goods can be revoked by SOURCE if the customer defaults on his payment obligations. By way of security, the customer shall now assign all receivables to SOURCE which he acquires from sales to his customers or third parties and claims from indemnification payments due to the destruction or damage of the reserved goods or from unauthorised handling to SOURCE to their full extent. The customer has the revocable right to collect these receivables. SOURCE shall only revoke this and shall only collect the assigned receivables if the customer defaults on his payment obligations, stops making payments or an order to open bankruptcy proceedings or similar is issued.
7.6
In no case is a customer entitled to offset with receivables claimed by him. By way of exception, this shall not apply for receivables which are undisputed or have been otherwise titled through a judicial decree. Furthermore, the customer is not entitled to refuse service due to warranty claims unless the customer's notice of defects has been acknowledged in writing by SOURCE.
8. Copyright
Services provided by SOURCE for the customer within the framework of a contractual relationship, also one that is only pending if applicable, such as (but not exclusive to) the formulation of designs, concepts, drafts, etc. shall lie exclusively with SOURCE in respect of (industrial property) rights such as copyrights/design patent rights/brand rights and others which manifest on these advance services. Usage and/or exploitation rights of whatever kind at all shall not be granted to the customer unless something to the contrary has been agreed. This also applies if the results have been created under cooperation with the customer or in accordance with his guidelines. The customer shall be considered the co-creator in such cases, however shall irrevocably waive the enforcement of usage, exploitation and/or other rights arising from copyright law to SOURCE.
Once the order has been placed, please ensure that the data provided by you to us in the course of the implementation of the order is either without third-party rights or you have been granted all of the usage rights for this from the respective entitled party, therefore third parties cannot enforce rights to the services and/or parts of it carried out for you in accordance with the contract. In this respect, you must clarify all rights for the data given to us before the order is placed. Particular logos/symbols and other files for the respective order are particularly included in the above regulation.
9. Data protection
SOURCE shall save and use the customer data given to it to process the order and shall forward it to third parties for this purpose if needed. Furthermore, SOURCE reserves the right to use the data for its own advertising purposes. The customer can revoke the use of the data for advertising purposes at any time.
Customer-related data shall not be passed on to third parties for advertising purposes.
10. Severability clause
If individual provisions of these terms and conditions should be or become legally invalid in full or in part or should have gaps, the validity of the remaining provisions shall not be affected by this. The defective provision or the provision with the gap must be reinterpreted as one whose economic and legal sense comes as close as possible to the defective provision but is valid and/or complete.
11. Applicable law
The law of the Federal Republic of Germany only, with the exception of the UN Convention on Contracts for the International Sale of Goods, shall apply to all contracts concluded with SOURCE.
12. Place of jurisdiction, place of fulfilment
12.1
The particular place of jurisdiction for legal disputes arising from a business relationship shall be Wiesbaden. However, SOURCE reserves the right to also sue the customer at a court in the area where he resides.
12.2
Wiesbaden shall be the exclusive place of fulfilment for all rights and obligations arising from the contract.
Wiesbaden, 01.06.2006
SOURCE Gesellschaft für verkaufsfördernde Produkte mbH
Hagenauer Straße 53 A
65203 Wiesbaden
Deutschland
Tel. 0 6 11 / 2 04 96 70
Fax. 0 6 11 / 2 04 96 80
info@source-werbeartikel.com
www.source-werbeartikel.com
