General Terms and Conditions of Sticky Ideas Schmidt und Flühr GbR
Miscellaneous – Scope
(1) Our General Terms and Conditions (“GTC”) apply exclusively; conflicting or deviating terms and conditions of the customer are not accepted, unless their applicability has been expressly agreed to in writing by us. Our GTCs also take effect if we are aware of conflicting or varying terms and conditions and fulfill orders for the customer without any reservation.
(2) All agreements made between us and the customer with respect to the execution of an order placed by the customer are recorded in writing in this contract and if applicable in the written confirmation of order, which we have issued. Verbal ancillary agreements do not to exist.
(3) Our GTCs are only valid with respect to companies established pursuant to Article 130 Section 1 BGB (German Civil Code).
Offer – Offer Documents
(1) An order of the customer, which is to qualify as an offer in accordance with § 145 BGB (German Civil Code), we can accept within a period of 2 weeks by sending a written order confirmation. The customer must inform us within an appropriate deadline, generally within not more than 5 working days, whether he/she accepts the suggestion for design and execution of trade fair presences, marketing and advertising measures or other measures; acceptance must be made in writing. If the customer accepts the suggestion made by us, then this is deemed to be approval of the cost estimate made with the suggestion.
(2) We reserve the proprietary rights and copyrights to figures, drafts, drawings, calculations and other documents. This is also valid for such written documents, which are termed as “confidential”. Before these are given to third parties the customer requires our express written permission.
Payment and Terms of Payment
(1) For the execution of orders placed by the customer, the customer pays the payment agreed with the customer and stated in the order confirmation. Upon request of the customer, we first prepare an estimation of costs. If this is approved by the customer then payment is made according to the cost estimation. Travel times and travel costs are paid according to actual costs.
(2) The statutory value added tax is not included in our prices; it is charged separately in the invoice at the statutory rate valid on the day of the issuance of the invoice.
(3) The deduction of discount requires a separate written agreement.
(4) Unless the order confirmation states otherwise, the payment stated in the order confirmation is to be paid net (without deductions) within 14 days of the invoice date and transferred to our bank account no. 33241 at Sparkasse Krefeld, Bank Sorting Code 320 500 00 IBAN no. DE69 3205 0000 0000 0332 41, BIC/SWIFT code SPKRDE33XXX. The statutory regulations will become valid as a result of any default of payment.
(5) The customer shall only be entitled to offsetting rights or rights of retention, if his counterclaims are declared legally valid and are undisputed or have been recognized by us. In addition, he/she is entitled to exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.
Delivery time and customer’s cooperation duties
(1) The beginning of the delivery time stated by us has as a prerequisite the clarification of any and all design organizational and technical questions, which can only be answered by the customer and which require previous clarification for the execution of the customer’s order. The customer is obliged to provide us with all data and documents/drafts and other information necessary for the provision of our services. If the customer provides us with drafts/documents for use for the design of advertising measures for the customer, then he/she guarantees that he/she has the rights of use necessary for this.
(2) The meeting of our delivery obligation further requires the timely and orderly fulfillment of the customer’s obligations. We also reserve the right to plead the defense of failure to perform the contract.
(3) If the customer delays acceptance or otherwise culpably breaches duties of cooperation, we will be entitled to demand that the damages we incur be refunded to this extent, including any additional expenses. The right to assert further claims or legal rights remains reserved.
(4) If the preconditions of subsection (3) exist, the risk of an accidental loss or the accidental deterioration of the works prepared by us and objects delivered by us shall pass to the customer at the moment that he is in default of acceptance or payment
(5) We shall be liable pursuant to statutory regulations if the contract, on the basis of which the delivery is made, is for the goods to be delivered at a fixed time as laid down in § 286 Section 2 Para. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We also shall be liable according to statutory legislation if as a result of a delayed delivery, for which we are responsible, the customer can claim that he no longer has an interest in fulfillment of the contract.
(6) Should the delivery delay be founded on an intentional or grossly negligent contractual violation on our part, we shall be liable in accordance with the statutory regulations; violation on the part of our representatives or vicarious agents falls to us. If the delay is due to willful or grossly negligent breach of contract on our part, then our liability for the compensation of damages is limited to the foreseeable damages that may typically be expected.
(7) We are also liable according to statutory regulations if the delay of delivery or services on our part is based on culpable violation of an essential contractual obligation (major contract duty); in this case the liability for compensation of damages is limited to the foreseeable damages that may typically be expected.
(8) In the event of a delay in delivery, we shall be liable for every full week of delay within the context of a flat-rate scale of compensation for delay amounting to 3% of the delivery value, however not exceeding a maximum of 15% of the total value of the order.
(9) The customer’s further statutory claims and rights remain reserved.
Transfer of risks – Packaging costs
(1) Provided that nothing else is stated in the order confirmation, the delivery of articles ordered by the customer takes place “ex works” (EXW), according to Incoterms 2010.
(2) The return of packaging materials is subject to separate agreements.
(3) At the request of the customer, we will have the delivery insured by transport insurance during transport; in this case the customer shall bear the costs incurred for this.
Liability for Defects
(1) The validity of any claims on the part of the customer shall be contingent on the customer having duly fulfilled his obligation to inspect the delivery and to notify us of any defects pursuant to § 377 HGB (German Commercial Code).
(2) If an article delivered by us is defect, then according to his choice the customer is entitled to supplementary performance by the repairing of the defects or the supplying of an article free of defects. In the case of removal of defects or replacement we are obliged to bear all costs necessary for this, in particular the transportation, shipping, work and material costs, if these are not increased by the fact that the item was brought to another location other than the place of fulfillment.
(3) If supplementary performance fails, then the customer is entitled either to cancel the contract or to demand a reduction in price.
(4) We shall also be liable pursuant to statutory provisions, if the customer asserts claims to compensation of damages which are based on intentional or gross negligence including intentional or gross negligence of our representatives or vicarious agents. As long as we are not accused of willful breach of contract, our liability for claims for damages is limited to the foreseeable damage that may typically be expected.
(5) We are liable in accordance with statutory provisions, if as we are culpably in breach of an essential contractual obligation (major contract duty); an essential contract obligation exists, if its fulfillment alone makes the execution of the contract possible at all and the adherence to which the customer may in such cases regularly trust. Also in this case the liability to pay compensation of damages is limited to the foreseeable damages that may typically be expected.
(6) If the customer is entitled to replacement of the damaged goods/services instead of the performance, our liability will also be limited within the scope of Section (3) to the replacement of the foreseeable damages that may typically be expected.
(7) Liability on account of culpable injury to life, limb or health is not be affected; this also applies to mandatory liability pursuant to the product liability law.
(8) If no other agreement different to the above has been reached, then the liability is excluded.
(9) The period of limitation for claims based on defects is 12 months. The start of the limitation period is determined by the respective statutory regulations on the delivery or services affected.
(10) The time limit for claims in the case of delivery regress pursuant to §§ 478, 479 BGB (German Civil Code) shall not be affected. This is five years calculated from the delivery date of the defective goods.
(1) Any additional liability for compensation of damages other than is stated in § 6 – irrespective of the legal nature of the claims made – is excluded. This applies in particular to claims for compensation of damages resulting from culpa in contrahendo, on the grounds of other breaches of obligation or of tortious claims for compensation of material damages according to § 823 BGB (German Civil Code)
(2) The limitation according to Section (1) shall also apply where the customer demands compensation of unnecessary expenditures in lieu of a claim to compensation for damages.
(3) If claims for damages against us are excluded or limited, this shall also apply with respect to the personal liability for compensation of damages of our employees, workers, collaborators, representatives, and vicarious agents.
Reservation of proprietary rights
(1) We reserve the proprietary rights to the works prepared and created by us and to all items delivered by us until we have received complete payment, i.e. all payments to be made by the customer for these. If the customer breaches the contract, particularly in the event of payment default, we are entitled to repossess the delivered goods. If the goods are revoked by us, this represents withdrawal from the contract. After repossession of the delivered goods, we are entitled to their disposition. The realization proceeds shall be set off against the customer’s liabilities, less reasonable costs of realization
(2) The customer is obligated to treat the goods delivered by us with care until the complete payment for them has been made; in particular the customer shall buy insurance coverage for such goods against loss, damage, and destruction such as by fire, water and theft at replacement value and at his/her own expense. Provided that service and inspection work is required, the customer must carry out such work at his own expense and in due time.
(3) In the case of seizure of the goods or other interventions by third parties, the customer is to inform us in writing without delay, so as to enable us to file suit pursuant to
§ 771 ZPO (German Code of Civil Procedure). If such third party is unable to reimburse us the court and out-of-court costs of a lawsuit according to § 771 ZPO (German Code of Civil Procedure), the customer is liable for the loss incurred to us.
(4) The customer is entitled to resell the delivered goods in an orderly business transaction; however, he hereby already now assigns all claims in the sum of the final invoice amount (including value added tax) of our claim, which accrue from the reselling to his purchaser or third party, irrespective of whether or not the delivered goods are resold after any further processing or without further processing. The customer shall retain the right of recovery of the debt even after he has assigned the claim to us. Our authorization to collect the account receivable ourselves shall remain unaffected by this. We undertake not to do so, as long as the customer duly meets his/her payment obligations from the revenue earned, has not defaulted on payment and in particular no application for the opening of settlement or insolvency proceedings has been filed or a suspension of payment has occurred. If this is the case, however, then we may demand that the customer makes his/her accrued claims and debtors known to us, states all necessary information for collection, hands over the corresponding documentation and informs the debtors (third parties) of the surrender.
(5) A processing or conversion of works or goods delivered by us is always carried out in our commission. If the item is processed together with other objects not belonging to us, then we shall acquire co-ownership of the new item in proportion to the ratio of the value of the item delivered by us to the other processed items at the time of processing (purchase price plus value-added tax). For the item created by processing the same shall apply as for the goods delivered under reserve.
(6) If the item made available by us is inseparably intermixed with other objects not belonging to us, then we shall acquire co-ownership of the new item in proportion to the ratio of the value of the item delivered by us to the other inter-mixed items at the time of mixing (purchase price plus value-added tax). If mixing is performed in such a manner that the item of the customer is to be regarded as the principal item, then it is deemed to be agreed that the customer transfers us proportional co-ownership. The customer shall preserve the sole ownership or co-ownership for us.
(7) In order to secure our claims against the customer, the customer shall also assign to us such claims accruing to him from combination of the goods delivered by us subject to retention with real estate property against a third party.
(8) At the request of the customer, we undertake to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%. We shall be responsible for selecting which securities we release.
Place of Jurisdiction – Place of Fulfillment
(1) Alterations or supplements to these GTCs, including the waiving of the written form requirement, must be made in writing.
(2) If the customer is a merchant/trader the place of jurisdiction shall be the location of our registered office. We shall, however, be entitled to sue the customer at the court of his place of domicile.
(3) The law of the Federal Republic of Germany shall apply under the exclusion of the reference regulations of International Private Law and the UN Convention on the International Sales of Goods.
(4) Unless the order confirmation states otherwise, our registered office is deemed to be the place of fulfillment.