Terms and Conditions

Terms and Conditions

Scholz Promotion Service GmbH Terms and Conditions

§ 1 General & Scope

The following terms and conditions govern all sales by our company to the customer; these terms and conditions may not be superseded by any conflicting or deviating terms and conditions put forward by the customer unless with our express written consent. Our terms and conditions of sale also apply in the event that we deliver goods to the customer despite being aware of conflicting or deviating terms put forward by the customer.

All agreements concluded between us and the customer for the purposes of executing this contract are laid down in writing in this contract.

§ 2 Offer – Offer Documents – Conclusion of Contract

Should the order qualify as an offer pursuant to § 145 BGB (German Civil Code) we shall be permitted to accept it within two weeks.

All our offers are subject to change. Declarations of acceptance and orders shall require our written confirmation in order to take effect. The goods to be delivered, appearance, services, dimensions and weights given in the order confirmation shall be regarded as estimates only and do not represent assured characteristics.

We or our suppliers shall retain intellectual property rights and/or copyrights for all illustrations, drawings, graphic designs, calculations, tools, printed documents, templates, samples and other documents even if the costs of creation of such documents and tools are borne by the customer. This shall also apply to handwritten documents marked 'confidential'. The customer shall only be permitted to distribute such documents to third parties with our express written consent.

The customer bears responsibility for all print templates, films, printing blocks and other documents supplied to the customer. A print release by the customer is binding. Should the customer not object to a sent proof sheet within three days, it shall become binding.

The customer is responsible for ensuring the documents supplied by the customer are not subject to any third-party rights. We have no obligation to review this. By placing an order the customer indemnifies us against any and all claims which may be raised against us due to possible rights violations. We are not obliged to accept orders or may decline orders involving or concealing the risk of violation of third-party rights.

We shall be entitled to carry out short / excess deliveries to an extent of up to 10% of the ordered goods. For order volumes less than the minimum quantities specified in the catalogues or advertising brochures we reserve the right to levy a special handling fee or a minimum quantity surcharge. We shall be entitled to deliver goods in partial deliveries.

For non-delivery or late delivery by our suppliers and in the event of force majeure we shall be entitled to withdraw from the contract with the customer. The customer does not have the right to make claims for compensation in such cases.

The customer is obliged to specify in the order whether the goods are for resale to end customers. By breaching this obligation or selling the goods to end customers contrary to the information provided in the order, the customer waives all rights pursuant to § 478 BGB.

By using our e-commerce solution customer online portal the customer, upon signing the usage agreement, is obliged to observe the contractual terms and conditions. We will take legal action in the event of any unlawful use of this copyright-protected system and make a claim for damages.

§ 3 Prices & Payment Terms

Unless otherwise specified in the order confirmation, our prices are 'ex warehouse' excluding packaging, freight, postage, insurance and other forwarding costs which are invoiced separately.

The statutory VAT is not included in our prices and will be stated separately on the invoice at the statutory rate on the date of invoicing.

Unless otherwise specified in the order confirmation, payment will be due within 10 days with a 2% discount or net within 30 days from the invoice date. Statutory late payment penalties will be charged.

Unauthorised discount deductions by the customer will not be accepted and will be reclaimed by us.

The customer shall only be entitled to offset rights and rights of retention if the customer's counterclaims are determined without further legal recourse, undisputed or recognised by us. Moreover the customer is only authorised to exercise a right of retention to the extent that the customer's counterclaim has the same contractual basis.

We reserve the right to make deliveries to new customers only upon advance payment. In case of late payment of deliveries or partial deliveries we reserve the right to withhold delivery or require advance payment for open orders or new orders.

If the customer does not accept properly ordered goods which are ready for delivery after a reasonable deadline, we shall be entitled, at our discretion, to demand fulfilment of the contract or withdraw from the contract and make a claim for damages due to non-fulfilment in the amount of 25% of the order value (excluding VAT). The customer retains the right to demonstrate that the damages incurred were lower than the claim amount.

In the event of unforeseeable changes in customs duties, sales tax, exchange rates, freight costs, insurance premiums and other applicable duties occurring at the time of order placement, we shall be entitled to change the price according to the change for the benefit and at the expense of the customer without this constituting a right of withdrawal.

§ 4 Delivery Time

The begin of the delivery time specified by us requires that all technical questions have been clarified. In particular the delivery period specifications shall apply only upon receipt by us of all documents, data and other services to be performed by the customer.

Adherence to our delivery obligations further requires the timely and proper fulfilment of the customer's obligation. We reserve the right to plea non-fulfilment of the contract.

If the buyer is in default of acceptance or culpably violates other cooperation obligations, we shall be entitled to demand compensation for damage incurred by us including any additional expenses. We reserve the right to make further claims.

Insofar as the requirements set forth in (3) have been met the risk of accidental loss or deterioration of the goods will be transferred to the customer at the time at which the customer is in default of acceptance or payment.

We shall be liable under the statutory provisions if the delay in delivery is due to wilful or grossly negligent breach of contract attributable to us or due to a fundamental breach of contract; a default on the part of our representatives or (vicarious) agents shall be attributable to us. Insofar as the delivery delay is not due to deliberate violation of contract terms for which we are responsible, our liability for damages shall be limited to foreseeable, typically occurring damage.

On special religious and national holidays as well as on company holidays in the countries of production as well as in the event that we are hindered in the fulfilling of the contract due to procurement, manufacture or delivery difficulties on our part or on the part of our suppliers, e.g. due to war, civil unrest, confiscation, lack of energy, traffic disturbances, strike, lockout, material shortage, import restrictions, copyright-related delivery bans or other causes not attributable to us the delivery time will be extended accordingly if production falls in such a period. This also applies to sudden occurrences such as energy and raw material shortages.

Should we be more than two weeks late in meeting a binding delivery deadline, the customer shall be entitled to – insofar as the customer can plausibly demonstrate that loss or damage has arisen from this delay – demand lump-sum compensation amounting to max. 15% of the delivery value. With this all damages claims arising out of the contract will be satisfied. No further liability will be accepted by us for a delay. This shall not apply insofar as in cases of intent or gross negligence or bodily injury liability is mandatory. A shifting of the burden of proof to the customer will also not be connected with this.

The customer shall be entitled to demand compensation in the case of failure to deliver unless delivery is hindered by reason of any circumstances beyond our reasonable control. Compensation to the customer will be limited to 10% of the value of the part of delivery that could not be delivered due to such a force majeure event. This limit shall not apply insofar as in cases of intent, gross negligence or bodily injury liability is mandatory. A shifting of the burden of proof to the customer will also not be connected with this.

§ 5 Transfer of Risk – Packaging Costs – Delivery

Unless otherwise specified in the order confirmation, delivery is 'ex warehouse'.

If upon the customer's request the goods are delivered to a place other than the place of fulfilment of the seller, the risk shall be transferred upon transfer of the goods to the forwarder, carrier or other person commissioned to carry out delivery.

With the exception of pallets, transport and all other packaging subject to the Verpackungsordnung (German packaging regulations) will not be taken back. The customer is obliged to ensure disposal of the packaging at the customer's own cost.

We will cover the delivery by transport insurance if the customer requests this; all incurred costs shall be borne by the customer.

Immediately upon receipt of the goods the customer shall inspect the package for damage and the goods for defects.

The choice of delivery route and method will be made by us based on the most economical option, however without guaranteeing the nonexistence of a less expensive delivery method. Special delivery methods must be communicated in writing by the customer.

The as-delivered condition will be in standard packing units and standard packages. Special packages or packing units require prior approval and written consent.

§ 6 Liability for Defects

Warranty claims by the customer require that the customer has properly met the inspection and complaint obligations pursuant to § 377 HGB (German Commercial Code). Notice must be given no later than three working days after receipt of the goods. The warranty shall not apply in the case of improper storage of the delivered goods by the customer.

We deliver the ordered goods with merchantable quality. If a purchase is made based on a sample the quality of the samples shall be maintained in the sold goods. Any modifications based on technical innovations or improvements or which can reasonably be caused by production shall be accepted by the customer as being within the scope of the contract. Handmade goods in particular may deviate from the sample as well as from other goods produced in the same process. These deviations shall not constitute grounds for complaint.

If the purchased goods exhibit defects the customer shall be entitled to choose subsequent performance in the form of removal of the defects or delivery of new defect-free goods. In the case of removal of defects we are obliged to bear all expenses incurred for the purposes of defect elimination, in particular transport, travel, labour and material costs provided that these costs are not increased by the fact that the purchased goods were brought to a place other than the place of performance.

If the subsequent performance is unsuccessful, the customer shall be entitled, at his or her discretion, to withdraw from the contract or demand a reduction in price. Return of the rejected goods requires our prior consent.

We shall be liable under the statutory provisions if the customer makes a claim for damages based on intent or gross negligence including intent or gross negligence of our representatives or agents. Insofar as we are not charged with intentional breach of contract, the liability for damages shall be limited to foreseeable, typically occurring damage.

We shall be liable under the statutory provisions if we culpably commit a fundamental breach of contract; in this case, however, liability for damages shall be limited to foreseeable, typically occurring damage.

Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Produkthaftungsgesetz (German Product Liability Act).

Unless otherwise stipulated above, liability shall be excluded.

The limitation period for warranty claims shall be 12 months from transfer of risk.

For goods from the Far East and so-called 'penny' items the warranty period shall be limited to the usual service life for each corresponding item, but no longer than 12 months, calculated from transfer of risk.

The time limit for bringing actions in the case of recovery against a supplier under §§ 478 and 479 BGB shall remain unaffected; it is five years from delivery of the defective goods.

In the event of sale to an end consumer in the sense given in the BGB the statutory provisions with respect to liability for defects shall apply.

§ 7 Limitation of Liability

Further liability for damages in excess of that provided in § 6 shall be excluded – irrespective of the legal nature of the asserted claim. This shall particularly apply to claims for damages from culpa in contrahendo, other breaches of duty or tort claims for loss of or damage to property pursuant to § 823 BGB.

Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability of our employees, workers, colleagues, representatives and agents.

§ 8 Retention of Title

We reserve the right to retain ownership of the goods until we receive full payment of all sums owed by the buyer to the supplier. In the event of breach of contract, in particular default in payment, by the customer we shall be entitled to take back the object of sale. Taking back the goods by us does not constitute withdrawal from the contract unless we have expressly stated this in writing. Seizure of goods by us always constitutes withdrawal from the contract. We shall be entitled upon taking back the goods for disposal to set off the proceeds of sale against the customer's debt – less reasonable disposal costs.

In the event of seizure of goods or other inventions by third parties the customer must inform us immediately in writing so that we can bring an action pursuant to § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.

The customer shall be entitled to resell the purchased goods in the ordinary course of business; however, he shall already at this time assign to us all claims amounting to the final invoice amount (including VAT) of our claim arising for the customer from the resale of goods to his customers or third parties irrespective of whether the purchased goods were resold without or after further processing. The customer shall be entitled to collect this claim until revocation even after the assignment. Our entitlement to collect the claim shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his or her payment obligations from the collected proceeds, does not fall into arrears and in particular has not submitted any application for opening of bankruptcy or composition or insolvency proceedings or has stopped payment. However, should this be the case, we shall be entitled to demand that the customer notifies us of the assigned claims and their debtors, provide all information necessary for collection, hand over the pertinent documents and inform the debtors (third parties) of the assignment.

We are obliged to release the securities we are entitled to request of the customer insofar as the realisable value of our securities exceeds the secured claims by more than 10%; it is incumbent upon us to select the securities to be released.

§ 9 Miscellaneous

We and our suppliers shall be entitled to affix our company logo or our trade name on the delivered goods and to use the goods delivered by us for commercial purposes, especially for exhibition in our premises and for display in catalogues and brochures of all kinds.

We shall be entitled to store data obtained in the course of order fulfilment and pass them on to our contracting partners for processing.

If any provision of these Terms and Conditions is declared invalid or otherwise unenforceable, the validity and enforceability of any of the other provisions and of the entire contract shall not be affected thereby. The whole or partially invalid or unenforceable provision shall be replaced by a provision as near in substance as possible to the original provision.

§ 10 Place of Jurisdiction & Place of Performance

If the customer is a merchant our registered office shall be the place of jurisdiction; however, we shall be entitled to sue the customer at his or her local court.

The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

Unless otherwise specified in the order confirmation, the place of performance shall be our registered office.

Last update: 1. July 2007

Scholz Promotion Service GmbH
Schelmenwasenstrasse 22
70567 Stuttgart – Fasanenhof

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