Terms and Conditions
AIR promotion GmbH • Industrial Park 6 • D-27777 Ganderkesee
Phone: +49 (0) 4 21 80 28 81 Fax: +49 (0) 4 21 80 28 80
Email: email@example.com Website: www.air-promotion.de
I. Validity Deliveries, services and quotations by our company are subject to the following terms and conditions: we do not recognise any conflicting terms or such deviating from our terms and conditions, unless we have expressly agreed to their validity. Contractual actions on our part shall in this respect not be regarded as agreement to contractual conditions deviating from our terms and conditions. These terms and conditions apply as general agreement for all further transactions between the contractual parties.
II. Conclusion of contract An offer of contract by a customer requires an order confirmation. Dispatch of customer ordered goods concludes the contract. If we are made an offer, the tenderer is bound to an adequate period of at least 8 days from receipt of the offer. Our offers, unless expressly stated otherwise in writing, are non-binding. The information and documents contained in and/or pertaining to an offer, e.g. illustrations, drawings and measurements are not deemed as warranted characteristics; they are only approximates.
III. Price All prices quoted by us are, unless otherwise expressly stated, exclusive of VAT, ex-works and exclude packaging. The price adjustments apply only to goods or services delivered after four months after conclusion of contract. In case of a cost increase as per the explanations above and the related price adjustment, the customer is entitled to withdraw from the contract at a price increase of 20% net. The withdrawal must be exercised within one week after notification of a price adjustment.
IV. Payment terms, interest on arrears Principally we only deliver against advance payment. Especially for custom products and printing jobs, we require a deposit of up to the full net value of the goods, to fulfil the contract! Discount deductions require special agreement. In case of late payment, including instalment payments, all discount agreements expire. Payments are only deemed as received on date of receipt in our business account. For payments by credit card, the customer authorises us - by notification of the credit card number – to debit the total invoiced amount after the order is placed or upon transfer of the goods to the freight company or the post office. Upon late payment by the customer we are entitled to, at our discretion, demand compensation for the actual losses or to charge interest on arrears at 8 percent above the base rate of the BGB [German Civil Code].
V. Contract withdrawal We are entitled to withdraw from the contract in the event of default of acceptance (pt. VII.) or any other important reasons, in particular the customer’s bankruptcy or avoidance of bankruptcy for lack of assets, as well as late payment by the customer, provided that the contract has not yet been fulfilled by both parties. In the event of withdrawal where the customer is at fault, we may at our discretion demand a flat rate of damages of 15% of the gross invoice amount or compensation for the actual loss incurred. In the event of late payment by the customer we are released from all further service and delivery obligations and are entitled to withhold any outstanding deliveries or services as well as to demand payment in advance and other payment guarantees or after a reasonable period of grace, withdraw from the contract. If the customer – without authorisation – rescinds the contract or demands its cancellation, we have the option to insist on the fulfilment of the contract or to agree to the termination of the contract; in the latter case, the customer is obliged to pay, at our discretion, a flat rate of 15% of the gross invoice amount or compensation for the actual loss incurred. The customer is permitted to submit evidence that no loss or value reduction has occurred or are significantly lower than the flat rate.
VI. Dunning and collection fees For the event of default, the contracting partner (customer) undertakes to reimburse the creditor for the dunning and collecting fees incurred, insofar they are necessary for appropriate prosecution, undertaking in particular to reimburse the compensation of the collection agency at a maximum. If the creditor conducts the dunning procedure himself, the debtor undertakes to pay an amount of €12.- for each dun and an amount of €6.- biannually, for maintaining evidence of the contractual obligations in the dunning process.
VII. Supply, transport, default of acceptance Delivery shall be at company headquarters or another location specified by us. Our prices do not include costs for delivery, assembly or installation. These services are however available or can be arranged by us at an extra cost. For transport and/or delivery, the actually incurred costs including a reasonable surcharge for overhead expenses and at least the normal freight and carriage charges for the chosen means of transport applicable on the day of delivery, will be invoiced. Assembly work will be charged at an hourly rate, whereby the usual man-hour rate of the sector is applied. For special orders, custom products or balloon pressure we reserve the right to invoice the total freight costs separately! If the customer did not accepted the goods as agreed (default of acceptance), after a grace period we are entitled to either store the goods with us, for which we charge a storage fee of 0.1% of the gross invoice amount per start of calendar day or store them with an authorised company at the expense and risk of the customer. Simultaneously we are entitled to insist on the fulfilment of the contract, or after a reasonable grace period of at least 2 weeks withdraw from the contract and use the goods for someone else.
VIII. Delivery period We shall only be obliged to provide a service once the customer has met all his obligations necessary for performance, especially all the technical and contractual details, preliminary work and preparatory actions. We are entitled to exceed the agreed dates and delivery periods by up to two weeks. Only after lapse of this period may the customer withdraw from the contract after a reasonable grace period has been set.
IX. Place of execution Place of execution is the headquarters of our company.
X. Minor alterations We are entitled to normal trade variations in quality, strength or appearances of the goods. Minor or other reasonable changes to our service or delivery obligations are deemed as accepted in advance. This shall apply especially for deviations of material nature (e.g. with sizes, colours, structure, design, material composition, etc.). For print jobs and mass products we reserve the right to over- or undership by 10%, as occasionally goods are not counted but weighed; this will be invoiced accordingly.
XI. Warranty, obligation to examine and give notice of defects Obvious defects of any kind and the delivery of any other but the ordered goods must reported promptly, i.e. claimed immediately after receipt and before use of the goods, otherwise no later than one week after receipt of goods by the purchaser, in a detailed, registered letter. Hidden defects which could not be found after an incumbent, immediate examination by the purchaser, must be claimed promptly, within no more than one week after their discovery, in a registered letter. Delivered goods shall be considered as accepted where notification of defects is not received or untimely. In case of warranty the object must be delivered in a clean and dry condition; the customer bears the cost of transport to and from the workshop or travel expense of a technician. After 6 months from transfer of risk, warranty claims of any kind against us, expire. We satisfy the customers’ warranty claims of remediable defects either by exchange, repair within a reasonable time or price reduction. Claims for damages by the customer aimed at remedying the defect through improvement or replacement can only be asserted once we fall behind with the fulfilment of warranty claims. The warranty covers material and processing defects under normal, reasonable use; it covers no damage caused by wilful damage, vandalism, improper use, damage by wind or weather and improper transport; furthermore it does not cover loss of profits, consequential damages and damages to third parties. For the purposes of § 377 HGB [German Commercial Code], the goods must be inspected immediately after delivery. We are to be notified of identified defects immediately, in writing, stating the type and extent of defect. Complaints about hidden defects must be made immediately, in writing, within no more than 3 working days after their discovery. Delivered goods shall be considered as accepted where notification of defects is not received or untimely.
XII. Compensation All claims for damages are excluded in cases of mild negligence. This does not apply to personal injury or to damages to goods accepted for processing. The aggrieved party is to prove the existence of mild or gross negligence. The conditions pertaining to compensation for damages as stated in these Terms and Conditions or otherwise agreed shall also apply if the claim for compensation is asserted in addition to or instead of a claim under warranty. Claims for damages as a result of inflation and use of balloons, captive balloons or inflatable objects are expressly excluded. With balloon decorations, particularly in public places, the responsible person on site must ensure the compliance with all safety regulations, especially since flammable materials are used in decorations!
XIII. Reservation of Ownership and Assertion thereof All goods are delivered under reservation of ownership and remain our property until paid for in full. Assertion of the reservation of ownership shall involve a withdrawal from the contract only if this is explicitly declared. For the return of goods, we are entitled to charge for incurred transport and travel costs. In the event of third parties’ use of the reserved goods - especially through seizures – the customer is obliged to advert to our ownership and inform us immediately. The customer bears the full risk for the reserved goods, in particular for the risk of collapse, loss or deterioration.
XIV. Assignment of claims In the event of delivery under reservation of ownership, the customer shall already assign claims against third parties to us, insofar these arise through the sale or processing of our goods, until final settlement of our claims. The customer shall, at our request, inform us of his purchasers, notify them of the assignment made. The assignment is to be made evident to the customer in accounting records, delivery notes, invoices etc. If the customer defaults on his payments to us incoming sales revenue is to be separated and the customer shall only collect these on our behalf. Any claims against an insurer are now already assigned to us. Claims against us may not be assigned without our explicit consent.
XV. Retention The customer is, in case of a justified claim, apart from cases of rescission, not entitled to withhold the entire, but only an appropriate portion of the gross invoice amount. Appropriate would the amount applicable to removal of the defects. XVI. Choice of Law, Jurisdiction German law applies. Applicability of the EU/UN sales convention is expressly excluded. The contractual language is German. The Parties agree to German domestic jurisdiction. Where permissible, the court that has jurisdiction at the registered office of our company shall settle all disputes arising from this contract locally.
XVII. Privacy, Change of Address and Copyright The customer gives his consent that the personal information also contained in the purchase agreement in performance of this contract will be stored and automatically processed by us. The customer is obligated to notify us of changes to his residential or business address, as long as the contractual legal transactions have not been fulfilled by both parties. If notification is not given, declarations shall also be deemed as received if sent to the last known address. Plans, sketches or other technical documents as well as samples, catalogues, brochures, illustrations and the like always remain our intellectual property; the customer does not have any usufruct or exploitation right.
XVIII. General Provisions Should a provision of these General Terms and Conditions be or become ineffective or unenforceable, this will not affect the validity of the remaining provisions. The parties are obligated to replace the ineffective or unenforceable provision with one that most closely reflects the commercial purpose of the ineffective and unenforceable provision. The same applies to omissions evident in the GTC.