Terms and Conditions

These terms and conditions form the basis for all goods and services provided by the company Advertising & Displays Werbecenter Berlin GmbH on the basis of on-site orders, on-line orders via internet or other online services. Other supplemental arrangements require the expressed written consent of Advertising & Displays Werbecenter Berlin GmbH. This also applies to any waiver of the requirement of written form. Sales to business people, legal person under public law or special funds under public in the sense defined by §310 Paragraph 1 BGB [German Civil Code].

§ 1 Scope

(1) These general terms and conditions of purchase apply exclusively to business people, legal persons under public law or special funds under public law in the sense defined by §310 Paragraph1 BGB [German Civil Code]. We will only recognize general terms and conditions of the customer that are contrary to or differ from our general terms and conditions of purchase if we expressly consent to them in writing.
(2) These general terms and conditions of purchase will apply to all future legal transactions of any kind with the customer.

§ 2 Bid and Conclusion of Contract

To the extent that an order is regarded as a bid under §145 of the German Civil Code, we can accept it within two weeks. Conclusion of a contact with Advertising & Displays Werbecenter-Berlin GmbH will only be affected in German. Should a customer cancel its order (which is only possible in correspondence directed to our executive management) before Advertising & Displays Werbecenter Berlin GmbH has fulfilled the contract, Advertising & Displays Werbecenter Berlin GmbH is entitled to accept or reject the cancellation. In the event of rejection, Advertising & Displays Werbecenter Berlin GmbH insists on the fulfillment of the contract. In the event of acceptance, Advertising & Displays Werbecenter Berlin GmbH is entitled to demand from the customer a flat rate fee for expenses based on the completion status of the order and totaling at least 10% of the total value of the order. Advertising & Displays Werbecenter Berlin GmbH reserves the right to refuse orders and print designs of an obviously racist, xenophobic, sexist or politically radical nature or those that glorify violence or violate the German Constitution.

§ 3 Documents We Provide

We retain copyrights and property rights to all documents (such as calculations, drawings, etc.) that we provide the customer in the framework of awarding the order. These documents may not be made accessible to third parties unless we grant the customer permission to do so explicitly and in writing. Should we not accept the customer’s order within the period specified in §2, these documents are to be returned to us immediately.

§ 4 Prices and Payment

(1) To the extent that nothing to the contrary is arranged in writing, our prices apply ex works excluding packaging and plus the legally required VAT in its current amount. Costs for packaging will be billed separately.
(2) Payment of the purchase price must be made only to the account named on the reverse of this page. Deduction of any discount is only allowed by special written agreement.
(3) To the extent that nothing else is agreed to, the purchase price must be paid within 10 days. Default interest in the amount of 8% above the current annual prime lending rate will be charged. The right to claim other default damages remains reserved.
(4) To the extent that no fixed price agreement was made, reasonable and appropriate price changes owing to changed labor, material and distribution costs remain reserved for shipments that are completed 3 months or more after the conclusion of the contract.
(5) Billing statements will be issued standard per e-mail to the e-mail address provided by the customer in our files. On request we will also be glad to send the billing statement by post or fax.

§ 5 Offsetting and Rights of Retention

The customer only has the right to offset if its counterclaims are legally established, subject to pending decision or undisputed. The customer is only entitled to exercise a right of retention if its counterclaim derives from the same contractual relationship.

§ 6 Delivery Period

(1) The beginning of the delivery period that we set presumes the timely and proper fulfillment of the customer’s obligations. The objection of non-performance of contract remains reserved.
(2) If the customer comes into default of acceptance or culpable breach of its duties of cooperation, we are entitled to demand compensation for damages resulting from this including any added expenses. Other and additional claims remain reserved. To the extent that the preconditions named above are in place, the risk of incidental loss or incidental deterioration of the object of purchase will transfer to the customer at the time in which the default of acceptance or debt takes effect.
(3) In the event of non-culpable default of delivery in which there is no malicious intent or gross negligence on our part, we are liable for default compensation in the amount of 3% of the value of the shipment for each full week of default up to a maximum of 15% of the total value of the shipment.
(4) Other legal claims and rights of the customer due to default of delivery are not affected.
(5) Issue of billing statement will be affected as standard per e-mail to the e-mail address on file with us provided by the customer. On request we will be glad to send the billing statement by post or fax.

§ 7 Transfer of Risk on Shipment

Once the good is sent to the customer on the customer’s request, the risk of incident loss or incidental deterioration of the good transfers to the customer; at the latest this will occur when the good leaves our warehouse/works.

§ 8 Reservation of Title

(1) We retain ownership of the delivered item until all claims from the delivery contract are completely fulfilled. This also applies to all future shipments, even if we do not specifically appeal to this right in every case. We are entitled to recover the object of purchase if the customer breaches the contract.
(2) The customer is obligated to treat the object of purchase with due care, so long as ownership of the object of purchase has not transferred to it. So long as ownership has not yet been transferred, the customer is obligated to inform us in writing if the object delivered is subjected to a lien or other interventions of third parties. To the extent that the third party is not able to reimburse us for the court and out-of-court costs of a legal complaint under §771 ZPO [German Code of Civil Procedure], the customer is liable for the outstanding amount that we incur.
(3) The customer is entitled to re-sale of the good under reservation of title in a regular business transaction. The customer cedes to us here and now the claims against purchaser deriving from the re-sale of the good under reservation of title in the amount of the final amount on the billing statement (including the VAT). This assignment applies regardless of whether the object of purchase is re-sold without or after any additional processing. The customer remains entitled to collect claims according to this assignment. Our right to collect the claim ourselves is not affected by this. However we will not collect the as long as the customer continues to meet its payment obligations out of the sales revenues collected, is not in default of payment, and especially as long as no petition to open bankruptcy proceedings or suspension of payments has been initiated.
(4) Processing, alteration or modification of the object of purchase by the customer will always be completed in our name and on our behalf. In this case the customer’s expectant rights to the modified object of purchase continues. As soon as the object of purchase is processed or combined with other objects that do not belong to us, we obtain co-ownership in the new item in proportion to ratio of the objective value of our object of purchase to that of the other objects processed at the time they are processed. The same applies in cases of combination. To the extent that combination of these goods is accomplished in such a fashion that the customer’s item is to be regarded as the primary object, it is agreed that the customer will grant us proportional co-ownership and will preserve the thereby established sole or co-ownership on our behalf. To secure our claims against the customer, the customer also cedes to us those claims that are engendered against a third party by the combination of the object under reservation of title with a real estate property; we accept this assignment here and now.
(5) We pledge to release the securities owed to us on request from the customer to the extent that their value exceeds the claims to be secured by more than 20%.

§ 9 Warranty and Complaints of Defect as well as Recourse/Recourse to Manufacturer

(1) The customer’s warranty rights assume that this party has fulfilled its duties to inspect and report under §377 HGB [German Commercial Code] in a proper and timely fashion.
(2) Claims for compensation for defects expire 12 months after the delivery of the good delivered by us to the customer. Our consent must be obtained before any good is returned.
(3) Should, in spite of the exercise of due diligence, the good delivered evince any defect that was present at the time of transfer of risk, we will, on the precondition of a timely and proper submission of the report of defect and at our discretion, either remedy the defect or provide a replacement good. We are always to be granted a reasonable period for subsequent fulfillment. Rights of recourse remain unaffected by this rule and without restriction.
(4) If our attempt at subsequent fulfillment fails, the customer may—without prejudice to any claims for compensation for damages—withdraw from the contract or reduce the payment.
(5) No claims for compensation for defects exist in the case of insignificant deviations from the promised quality and condition, insignificant impediments to use, natural wear and tear or in the case of damages that occurred after the transfer of risk as a result of negligent or improper handling, subjecting the item to excessive strain, unsuitable fuels or consumables, defective construction, choice of an unsuitable construction site or due to unusual outside influences that are not assumed under the terms of this contract. If the customer or a third party performs any improper modifications or repairs, no claims for compensation for damages owing to these acts will be granted.
(6) Claims on the part of the customer for expenses necessary to the subsequent fulfillment, especially costs for transport, freight, labor and material costs, are excluded to the extent that the expenses increase due to the good we delivered being stored at a location other than the customer’s business premises, unless its storage at another location is commensurate with its intended use.
(7) Rights of recourse on the part of the customer against us exist only to the extent that the customer did not conclude any agreements going beyond the legally required compensation for claims for defects with its own consumers. Paragraph 6 also applies analogously to the scope of any claims of recourse on the part of the customer against the supplier.
(8) In the event of intentional concealment of a defect or in the case of acceptance of a guarantee for the quality and condition of the good at the time transfer of risk in the sense defined by §444 German Civil Code (declaration of the seller that the object of purchase has a certain property at time of transfer of risk and that the seller, regardless of fault, will be responsible for all consequences of the absence of the property), the customer’s rights are solely governed by provisions of law.

Explanation of §377

(1) If the purchase is a commercial transaction for both parties, the purchaser must examine the good immediately after delivery by the seller to the extent this is feasible in the normal course of business, and if there are any defects and report such defects to the seller immediately in a written notice.
(2) If the buyer fails to submit notice of defect, the good is deemed approved and accepted, unless the defect was not recognizable during the inspection.
(3) If such a defect is later discovered, notice must be given immediately after discovery; otherwise the good will be deemed approved even in light of this defect.
(4) The timely sending of the notice of defect suffices to preserve the buyer’s rights.
(5) If the seller intentionally concealed the defect, it cannot appeal to this provision.

§ 10 Quality

Advertising & Displays Werbecenter Berlin GmbH strives to make products of high quality. For this reason we reserve the right to change production processes without prior notice to the extent that the quality is not reduced by the change. This applies to all products in our range of products.

§ 11 Other

(1) This contract and all legal relationships between the parties are subject to the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods.
(2) The place of fulfillment and sole court of jurisdiction for all legal disputes arising from this contract is our business headquarters, to the extent that nothing else is arranged in the order confirmation.
(3) Changes and amendments of this contract must be affected in writing. This also applies to any changes in this clause requiring written form. No supplemental oral agreements will be made.
(4) Should individual provisions of this contract be or become unenforceable or evince a loophole, the remaining provisions will be unaffected. The parties are obligated to replace the unenforceable provision with one that most closely approximates the intended commercial purpose of the unenforceable provision, or that closes this loophole.

Berlin, 15.09.2014

Scope:

All goods and services provided by Werbecenter Berlin in fulfillment of orders that the customer issued and that are not part of the customer’s own independent commercial activity are subject to these terms and conditions. Other or supplemental agreements require the expressed written consent of Advertising and Display Werbecenter Berlin GmbH; this also applies to any waiver of the requirement of written form.