WERBEKONFEKT GMBH - GENERAL TERMS & CONDITIONS OF SALE AND DELIVERY
January 01, 2018
- Definitions.
In these General Terms & Conditions of Sale and Delivery (hereinafter referred to as ‘’GTCS’’) the following definitions will mainly be used:
1.1. Werbekonfekt
the private limited company Werbekonfekt GmbH., domiciled in Dieselstrasse 20, 84056 Rottenburg, Germany (hereinafter referred to as ‘’Werbekonfekt’’).
1.2. Principal
every natural or legal person, by order of whom Werbekonfekt delivers products and/or services, or with whom Werbekonfekt enters into an agreement or with whom Werbekonfekt is negotiating or in discussion about entering into an agreement.
1.3. Offer
the written offer of Werbekonfekt to deliver at a certain price a particular quantity of goods or to provide a previously well-defined service.
1.4. Order
the assignment to deliver, or as the case may be the acceptance of the offer of Werbekonfekt by the Principal. The order leads to the agreement, provided this has been entered into by a person of Werbekonfekt, who is authorized to do so.
1.5. Services
all activities, in whatever form and under whatever name (purchase, assignment, contracting of work, etc.), which Werbekonfekt carries out for, or on behalf of the Principal.
1.6. In Writing
electronic data traffic and/or messaging per fax and/or messaging by mail or delivery otherwise of written documents.
1.7. Delivery
the placing of goods in the Principal’s possession, respectively power.
1.8. Products
all goods, including documentation, drawings, models, sketches, samples, printer’s proofs and all (other) results of the service rendered by the Principal, which are the object of an agreement.
1.9. Parties
Werbekonfekt and Principal.
1.10. Agreement
any agreement which is drawn up between Werbekonfekt and Principal, any alteration in, or addition to that, as well as all (legal) acts for the preparation and execution of that agreement.
- Applicability.
2.1. In case of a conflict, any specially made agreements prevail over these GTCS.
2.2. Deviation from these GTCS can only be agreed upon in writing.
2.3. These GTCS apply to all enquiries, offers and agreements regarding the delivery of goods by Werbekonfekt to the Principal. General conditions – under any name – of the Principal, do not apply. These are explicitly rejected by Werbekonfekt
3. Offers.
3.1. All offers, in any form, are for Werbekonfekt without obligation, unless they contain a term for acceptance and are based on delivery under normal conditions and during normal working hours.
3.2. If an offer without obligation is accepted, Werbekonfekt has the right to rescind the offer within three days after reception of the acceptance.
3.3. Images, catalogues, drawings and other data supplied to or by Werbekonfekt are subject to alterations without prior notice and do not bind Werbekonfekt.
- Price and price review.
4.1. Unless otherwise agreed in writing, the prices given by Werbekonfekt are based on delivery Ex Works, warehouse or other storage depot, excluding sales tax, import duties or other taxes, levies or obligations and excluding the costs of loading and unloading and insurance.
4.2. The agreed prices and rates are in Euros unless agreed otherwise in writing.
4.3. A quotation submitted by Werbekonfekt does not bind her and only applies as an invitation for placing an Order by Principal.
4.4. Werbekonfekt has the right at all times to determine that certain Products will only be delivered in certain minimum quantities.
4.5. Every change in the factors which influences the price of Werbekonfekt, including purchase prices, rates of exchange, import and export duties and other levies due to import and export, insurance rates, freight rates and other levies or taxes, Werbekonfekt may pass on to Principal. Only if this happens within three months after acceptance of the Order by Werbekonfekt and provided that Principal is entitled to an appeal to grounds for annulment, Principal is authorized to annul the Agreement.
4.6. Principal indemnifies Werbekonfekt for all costs and damage which for Werbekonfekt might result from the fact…
4.6.1. …that Principal is not properly registered for sales tax or a comparable tax in a relevant EC-member state; and/or
4.6.2. …that Principal provides incorrect or untimely data to Werbekonfekt and/or the authorities in the area of sales tax or a comparable tax in a relevant EC-member state.
- Delivery time.
5.1. The given delivery times will never be considered deadlines, unless explicitly has been agreed otherwise. Therefore, in case a delivery is not in time, Werbekonfekt must be declared in default in writing.
5.2. Principal makes sure that from her side there are no obstacles for realizing certain agreed terms, including delivery and acceptance times.
5.3. When exceeding any term, Principal is not entitled to any compensation (for damage) concerning the matter. In that case, Principal is neither entitled to annulment or cancellation of the Agreement, unless exceeding the term is such that one cannot reasonably expect Principal maintaining (the concerning part of) the Agreement. Then, Principal is authorized, after proof of default containing a reasonable further period of fulfillment, to annul or cancel the Agreement by registered mail. However, only to the extent that it is strictly necessary.
5.4. The delivery time commences at the last of the following points in time:
5.4.1. the day of the establishment of the agreement.
5.4.2. the day of reception by Werbekonfekt of the documents, data, permits and such, necessary for carrying out the agreement.
5.4.3. the day of reception by Werbekonfekt of that which, according to the agreement, has to be paid in advance by Principal.
- Delivery.
6.1. For the interpretation of delivery conditions the ‘’Incoterms’’ apply, edition 2010, or the most recent version, published by the International Chamber of Commerce (ICC).
6.2. Werbekonfekt reserves the right to deliver and to invoice maximum 10% more or less than the agreed quantity in case of products, specially made for the benefit of Principal, or as the case may be, specially composed products.
6.3. Shipping goods in parts by Werbekonfekt is permitted after proper consultation beforehand, whereby every shipment is to be paid separately.
6.4. Unless otherwise agreed in writing, delivery of goods shall be ex works, ex warehouse, in which case goods shall be deemed to have been delivered by Werbekonfekt and accepted by Principal, as soon as they have been offered to Principal.
6.5. If a customer from within the EU (but outside Germany) collects the goods from suppliers warehouse, customer must provide a transport declaration. If no transport declaration is being provided, customer must pay German VAT.
6.6. If a customer from outside the EU collects the goods from suppliers warehouse, customer must provide an export accompanying document (aed document) If no such document is being provided, customer must pay German VAT.
6,7. Unless otherwise agreed in writing the transport will take place at the expense and risk of Principal, also if the forwarder has stipulated explicitly that all transport documents must mention that all damage resulting from the transport are at the expense and risk of the sender (ex works).
6.8. If Werbekonfekt shows or provides a model, sample or specimen, this happens only by way of indication: the qualities of the goods to be delivered may deviate from the sample, model or specimen. The provision in point 3. applies accordingly.
6.9. Should Principal not take, or not take in time, the Products for legally invalid reasons, he will be in default, without proof of default. In that case Werbekonfekt is authorized to store, or to sell to a third party, the Products at the Principal’s risk and expense and to demand payment concerning the parts that have actually been executed. Any loss of quality due to the delay will be at the risk and the cost of Principal. Principal still owes the purchase price, increased by the interest and collection charges, by way of compensation. However, as the occasion arises, less the net yield of the sale to that third party.
6.10. Delivery takes place ex works, warehouse on the ground floor of only one address, which is understood to mean the place from where, or by means of which or on behalf of Werbekonfekt, delivery is done. The delivery of Products is considered to have taken place:
6.10.1. when dispatched by intervention of a professional carrier; by transfer of the Products to the professional carrier;
6.10.2. if the Products are or have been collected by or on behalf of Principal;
6.10.3. by receiving the Products;
6.10.4. when dispatched through a means of transport of Werbekonfekt;
6.10.5. by delivery to an address given by the Principal.
7. Delivery of printed goods.
7.1. In the event Werbekonfekt is commissioned to deliver products, which have been manufactured or composed specially for the benefit of the Principal, the Principal is obliged to deliver for shipment directly reproducible material of good quality.
7.2. Werbekonfekt is exclusively obliged to send to Principal beforehand a printer’s proof for approval, if this has been required by Principal in writing before giving the assignment. In this case, Werbekonfekt commits herself to submit, not later than five weeks after receiving the assignment to that effect and after receiving the materials to be reproduced, to Principal a printer’s proof, which is deemed to have been approved if there has been no reaction on the printer’s proof in writing within five working days.
7.3. All costs of the print work or in connection with that, will be charged separately and are not included in agreed prices, unless explicitly the opposite has been agreed upon.
7.4. In the event Werbekonfekt is commissioned to deliver products, which have been manufactured or composed specially for the benefit of the Principal, the Principal is obliged to accept over o runder deliveries of 10 %..
8. Force majeure.
8.1. If the delivery is wholly or partly prevented by force majeure, Werbekonfekt is authorized to put the delivery on hold, or to wholly or partly annul the agreement insofar as it has not obliged to pay any damages to Principal.
8.2. Parties will inform each other as soon as possible of a (possible) condition of force majeure.
8.3. If this condition of force majeure has lasted for three months, both parties have the right to wholly or partly annul the Agreement in writing.
8.4. Force majeure in these GTCS is understood to mean: any circumstance independent of the will of Werbekonfekt – also if this circumstance at the establishment of the agreement could already be foreseen – which permanently or temporarily prevents the fulfilment of the agreement, as well as insofar as not yet included in that: war, danger of war, civil war, revolt, work strike, exclusion of workers, transport troubles, fire and/or serious interruptions of operations in the company of Werbekonfekt or of her suppliers.
9. Complaints.
9.1. Complaints concerning transport defects which can be seen when receiving the goods, Principal has to inform the forwarder immediately in writing on forwarders delivery forms of the defects. Later complaints for transport defects can not be accepted by Werbekonfekt and Principal has to carry his complaint with the forwarder without assistance from Werbekonfekt.
9.2. Complaints concerning noticeable defects on the goods received must be uttered in writing within eight days after delivery of the goods, at the exceeding of which Werbekonfekt is not obliged to any form of compensation. Defects, which could not reasonably be established within the aforementioned term, must immediately after establishment thereof, but not later than within 30 days after arrival of the Products, be reported in writing to Werbekonfekt.
9.3. After discovery of any defect Principal is obliged to stop the usage and/or further delivery to third parties of the concerning Products without delay.
9.4. Principal will render all assistance, as required by Werbekonfekt for investigation of the complaints, amongst other things by giving an opportunity to Werbekonfekt to do an investigation or to have one done, or by returning some representative defective Products at Werbekonfekt’s expense.
9.5. It is not open to Principal to return the Products before Werbekonfekt has agreed to that in writing. The costs of returning the goods are for Principal and the Products remain at his risk. Returning never implies any recognition of liability.
9.6. Defects concerning a separate batch of Products, which is part of a delivery consisting of more lots, only give Principal the right to annulment of the entire Agreement if Principal cannot reasonably be expected to maintain the remaining part of the Agreement.
- Guarantee.
10.1. If Werbekonfekt delivers Products to Principal which Werbekonfekt has received from her suppliers, Werbekonfekt is never obliged to further guarantee or liability in relation to Principal, than that which Werbekonfekt can claim in relation to her supplier.
10.2. The Products remain completely at Principal’s risk in case repair activities are carried out by Werbekonfekt to the Products, unless the repairs result from a faulty performance of Werbekonfekt and one may not in fairness expect from Principal that she insures the Products for the abovementioned risk.
- Reservation concerning ownership.
11.1. Werbekonfekt reserves the right to ownership for all goods delivered by her to Principal, until the purchase price for all these has been paid in full.
11.2. If Werbekonfekt within the framework of the agreement concluded with Principal, carries out activities to be reimbursed by Principal for the benefit of Principal, the reserved right of ownership also applies until Principal has also paid this claim of Werbekonfekt in full.
11.3. The reserved right of ownership also applies in regard to claims which Werbekonfekt might obtain towards Principal due to Principal’s failure in one or more of her obligations towards Werbekonfekt.
11.4. As long as the ownership of the delivered goods has not been transferred to Principal, she may not hypothecate the goods or grant to a third party any other right on those other than within the framework of the normal operation of her company whereby Principal commits herself, in the case of sale on credit, to require from her customers an ownership reservation on the basis of the provisions of this .
11.5. The Principal is obliged to keep carefully and as Werbekonfekt’s recognizable ownership, the Products which have been delivered under ownership reservation and to insure these against risks like fire, explosion, damage and theft. At Werbekonfekt’s first request to that effect Principal will assign all rights towards the insurers involved in this connection to Werbekonfekt.
11.6. If and as long as Werbekonfekt is owner of the Products, Principal will post Werbekonfekt without delay in writing when any part of the Products has been lost, or has been damaged, or (any part of) the Products (has) have been seized and/or otherwise been claimed. Furthermore, Principal will inform Werbekonfekt upon Werbekonfekt's first request where the Products, of which Werbekonfekt is the owner, are.
11.7. In case of seizure, (provisional) moratorium or bankruptcy Principal will immediately point out to the seizing bailiff, the receiver or the curator bonis the (ownership) rights of Werbekonfekt.
- Payment.
12.1. Unless otherwise agreed in writing and without prejudice to the provisions in the following paragraph, payments to Werbekonfekt are to be made within net 30 days after the date of invoice, which date will be considered the deadline. The date of the credit entry in Werbekonfekt’s banc account applies as date of payment.
12.2. Unless explicitly agreed otherwise, all Principal’s payments, no matter how they were made, will be used in the first place to reduce the costs, subsequently to reduce the apparent interest and finally to reduce the principal money of the still unpaid invoices.
12.3. Werbekonfekt must be notified in writing of possible objections against invoices, specifications, descriptions and prices within 8 days after the date of invoice. If this is not possible due to any cause, which cannot be imputed Principal, Principal will at any rate report in writing to Werbekonfekt her objections as soon as is reasonably possible.
12.4. Comparison of debts or other forms of settlement are never allowed without explicit written agreement. Werbekonfekt always has the right before delivery, or before continuing the delivery, to ask from Principal – according to Werbekonfekt’s judgment ¬sufficient prepayment or security for the fulfillment of the obligation to pay, whereby Werbekonfekt is authorized to postpone further deliveries if Principal does not fulfill these requirements, also in case a fixed delivery time has been agreed, this and that without prejudice to Werbekonfekt’s right to claim compensation because of late fulfillment, or as the case may be non-fulfillment of the agreement.
12.5. If Principal does not pay within the agreed term he will be in default without any notice of default being required and Werbekonfekt has the right -without any proof of default – to charge her interest from the due date of the unpaid invoice or invoices at the rate of 2% above the legal commercial interest.
12.6. If Principal gets in default, then from that moment all outstanding claims of Werbekonfekt against Principal are immediately due.
12.7. All extrajudicial collection costs to be made by Werbekonfekt will be for Principal’s account and are calculated in proportion to the outstanding amount in the way, as indicated below, on the understanding that these will be € 100,= at least. The extrajudicial collection costs will be calculated on the principal money, as follows: on the first € 3,000.= 15% on the following amount up to € 6,000.= 10% on the following amount up to € 15,000.= 8% on the following amount up to € 60,000.= 5% on any amount above € 60,000.= 3%
- Consultancy and product development.
13.1. If, on being asked, Werbekonfekt acts in an advisory role, she is obliged to look after Principal’s interests to the best of her knowledge and ability.
13.2. In the case of product development, advice on promotional products to be applied, advice concerning creative concepts, offers for extensive projects with or without printed products, national or international market research on specific products or product enquiries concerning not concretely described products, Principal owes – in all cases which do not provide the delivery of concretely described products – a compensation at an hourly rate or at a fixed rate, to be agreed upon beforehand between the parties.
- Intellectual property.
14.1. Werbekonfekt declares that, as far as she knows, the Products do not infringe on third party’s intellectual property rights applicable in the Netherlands. However, Werbekonfekt cannot indemnify Principal against possible infringement on intellectual property rights of third parties.
14.2. If Werbekonfekt manufactures Products, or has these manufactured, by specific assignment of Principal on the basis of a design which is not originating from Werbekonfekt, Principal will indemnify Werbekonfekt against all infringements in regard to (the manufacturing and the usage of) the Products on the intellectual property rights of third parties.
14.3. The copyright on sketches, drawings, litho's, cliché’s, photographs, models and suchlike designed by, or as the case may be established by Werbekonfekt, will at all times be held by her, even if Principal concerning this matter has placed an order and has fulfilled the financial obligations resulting from this.
14.4. Principal stands by not infringing (nor allowing or enabling third parties to do so) on intellectual property rights of Werbekonfekt, or her suppliers, concerning the Products.
- Typeset proof, printer’s proof and other proofs.
15.1. On Werbekonfekt’s request or otherwise, Principal is obliged to check the received typeset proofs, printer’s proofs and other proofs carefully on flaws and/or weaknesses and, as the occasion arises, to return these to Werbekonfekt with all due speed, corrected or approved.
15.2. Approval of the proofs by Principal applies as recognition of the fact that Werbekonfekt has carried out the activities which precede the proofs, on time and correctly.
15.3. Werbekonfekt is not liable for defects, flaws and faults, which have remained unnoticed in the proofs approved or corrected by Principal.
15.4. Every proof, manufactured by Principal’s explicit request will be charged in addition to the agreed price, unless it has been explicitly agreed that the costs of these proofs are included in the price.
- Return of rented or loaned goods.
16.1. If Werbekonfekt in executing the agreement has rented and/or loaned goods to Principal, against payment or otherwise, Principal is obliged to return these goods in the original state, default-free and complete, within fourteen (14) days after the termination of the agreement, for whatever reason. The term mentioned for this is to be applied as deadline.
16.2. If Principal, for whatever reason, remains in default concerning the obligation mentioned under paragraph 1, Werbekonfekt has the right to recover the damage and costs resulting from this, including the costs of replacement and lost rental income, from Principal, without prejudice to the other rights, Werbekonfekt is entitled to in this connection.
- Responsibilities Principal.
17.1. Principal will make available to Werbekonfekt on time all data necessary for the execution of Werbekonfekt's activities and guarantees the correctness and completeness thereof.
17.2. Principal will not wholly or partly remove the brand and/or distinguishing marks on the Products or make them invisible.
- Processing of personal data
18.1. Personal data will be processed in a proper, careful and confidential way, observing the applicable national and international legislation and regulations, including the General Data Protection Regulation ('GDPR'). This also includes cooperating with legitimate requests from data subjects within the meaning of the GDPR.
18.2. Furthermore, personal data will not be processed other than in a way that is compatible with the objectives for which they have been obtained and shall not be stored or processed any longer than is required.
18.3. Suitable technical and organisational safeguards shall be put in place to ensure that personal data are protected against destruction, loss or any form of unlawful processing, taking into account the state of the art and the type of processing.
18.4. Where applicable, the Principal shall immediately on request of Werbekonfekt cooperate with the creation of a contract to be provided by Werbekonfekt as referred to in 28 GDPR (a processor's contract) for the processing of personal data by Werbekonfekt, to the extent that an existing contract between the parties does not already qualify as such a contract.
18.5. Werbekonfekt shall inform the Principal as soon as possible, but in any case without unreasonable delay, of a personal data breach, such to the extent that it concerns personal data that in the context of a contract between the parties have been obtained from the principal or are processed about the Principal by Werbekonfekt and/or concern persons the contract relates to.
- Liability.
19.1. Subject to gross guilt or intent on the part of Werbekonfekt or managerial subordinates of Werbekonfekt, Werbekonfekt is not liable for costs, damage or interests, resulting from deeds of negligence of above-mentioned persons or of other subordinates of Werbekonfekt, or persons charged by Werbekonfekt for the execution of the agreement.
19.2. Every liability of Werbekonfekt for loss of profits or other indirect damage is explicitly out of question.
19.3. The liability of Werbekonfekt towards Principal is, by reason of whatever, per event (whereby a coherent range of events is considered one event) limited to the contract sum (excluding VAT). If no contract sum can be indicated, Werbekonfekt’s liability is limited to the amount she will receive from her company liability insurer, concerning this matter.
- Annulment.
20.1. In case of a (provisional) moratorium, bankruptcy, shut down or liquidation of Principal’s company, all Agreements with Principal will be legally annulled, unless Werbekonfekt informs Principal within a reasonable time (as the occasion arises at the demand of the receiver or the trustee) to demand the fulfillment of (a part of) the Agreement(s) concerned, in which case Werbekonfekt is authorized, without proof of default, to:
20.1.1. delay the execution of the Agreement(s) concerned until payment has been secured sufficiently; and/or
20.1.2. delay all her possible obligations in relation to Principal; this and that without prejudice to Werbekonfekt's other rights under any Agreement whatsoever with Principal and without Werbekonfekt being obliged to any compensation.
20.2. If Principal does not, or not properly, or not within the stipulated term fulfil or otherwise does not fulfil in time any obligation which might result for her from any Agreement, Principal is in default and Werbekonfekt is authorized, without proof of default or legal intervention to:
20.2.1. delay the execution of that Agreement and of directly related Agreements, until payment has been secured sufficiently; and/or
20.2.2. annul wholly or partly that Agreement and directly related Agreements; all this without prejudice to Werbekonfekt's other rights under any Agreement with Principal whatsoever and without Werbekonfekt being obliged to any compensation.
20.3. In case an event occurs as meant in paragraph 1 or paragraph 2, respectively all claims of Werbekonfekt against Principal and the claims meant by reason of the Agreement(s) concerned, are immediately and in their entirety due and Werbekonfekt is authorized to take back the Products concerned (see 11). In that case Werbekonfekt and her authorized representative(s) are authorized to set foot on Principal’s premises and in Principal’s buildings in order to take possession of the Products. Principal is obliged to take the necessary measures in order to give Werbekonfekt the opportunity to exercise her rights.
- Disputes, competent judge and applicable law.
21.1. Disputes between parties, including those which are considered such by one of the parties, will as much as possible be resolved by mutual consultation.
21.2. If parties fail to come to a solution, disputes will be brought before the competent judge in the district in which Werbekonfekt has her domicile (Court of Arnhem, the Netherlands), save insofar as compelling competence rules would hinder this choice. This Agreement shall thus be governed by and construed in accordance with and subject to the laws of the Netherlands.
21.3. If a stipulation of these conditions appears to be invalid, it will not affect the validity of the whole agreement. In that case Werbekonfekt has the right to replace such a stipulation by a – for Principal not unreasonably burdensome – stipulation which comes closest to the invalid one.