General Terms and Conditions of WER GmbH (AGB)
WER GMBH offers its customers creative complete solutions in the field of representational advertising. This includes in particular the development, design, procurement and logistics of advertising materials. WER GMBH exclusively supplies commercial customers (no end customers/consumers).
These provisions finally regulate – nevertheless subject to relevant legal regulations – the legal relations between WER GMBH and its customers. The customer recognizes these provisions as binding also for future business with WER GMBH.
These provisions are conclusive. Any provisions of the customer deviating from these provisions shall be irrelevant; they are hereby expressly rejected. There are also no agreements that go beyond these provisions. Such agreements must be in writing in order to be validly included.
These provisions shall apply exclusively when used in relation to customers who are not end customers/consumers (cf. Section 1 of these General Terms and Conditions).
WER GMBH reserves the right – also unilaterally – to change these provisions and/or individual parts of these provisions. The respective current version of the terms and conditions shall apply, whereby the point in time of the conclusion of the contract shall always be decisive.
The customer acknowledges that certain products and services may be subject to special import/export controls and/or restrictions. Prior review and compliance with such regulations is the sole responsibility of the customer. The Customer agrees that, where applicable, no product may be exported or resold – whether directly or indirectly, separately or as part of a system – without the Customer having first complied, at its own expense, with all regulations and applicable statutory provisions and, for example, also having obtained the necessary consent of a competent authority and/or other (governmental) body in this respect. The same applies if special documents are required for the import/export of certain products, the procurement of which is also generally the responsibility of the customer. If a certificate of origin is required by the customer, WER GMBH shall be informed of this when the order is placed; WER GMBH shall be entitled to charge the customer a lump sum of € 25,- per certificate of origin for the (additional) expenditure incurred in the context of applying for/issuing such a certificate of origin.
3.Conclusion of contract
Products and services offered by WER GMBH in catalogs are non-binding invitations to the customer to submit an offer. In this respect, the specifications and more detailed designs of the products and services offered by WER GMBH are non-binding and not binding. A declaration of intent by the customer aiming at the conclusion of a contract always constitutes an offer. The customer is bound to this offer, provided that the products and services ordered by the customer can be kept in stock by WER GMBH in the desired specification and quantity or can be delivered within a reasonable period of time. If the customer does not receive a confirmation of his offer from WER GMBH within 14 days after submission of the offer and WER GMBH has not yet started with the execution of the order, the customer shall no longer be bound to his offer.
A confirmation from WER GMBH about the receipt of an order/offer does not constitute a declaration of acceptance.
Declarations of intent made by WER GMBH in the course of concluding the contract shall always be subject to correct and timely delivery by its suppliers, unless WER GMBH itself is responsible for any incorrect or non-delivery. If the execution of a contract proves impossible for WER GMBH – for example due to the unavailability of a certain product – WER GMBH shall inform the customer thereof without delay. Any consideration already paid – in part or in full – shall be refunded without delay.
At the request of the customer in the context of an incipient contractual relationship rendered preliminary services (conceptions, drafts etc.) can be charged to the customer under consideration of the respective expenditure of time, even if it does not come later to the conclusion of a contract between the parties, as far as WER GMBH is not responsible for this.
If WER GMBH prepares preliminary work of the type mentioned above for the customer, the work results resulting from this are to be released by the customer after inspection before further execution of the contract. The inspection period is two weeks from receipt of the work results by the customer. After expiry of the inspection period, the release shall be deemed to have been declared.
After the conclusion of a contract WER GMBH grants the customer the possibility to unilaterally withdraw from the contract according to § 353 BGB (German Civil Code) against payment of a regret money in the amount of 20 % of the expected net final invoice amount, if and as long as the goods subject to the contract have not yet been bindingly ordered by WER GMBH – for example at a pre-supplier of WER GMBH. Such a withdrawal of the customer is only effective if the regret money is paid to WER GMBH before, but at the latest at the time of the declaration of withdrawal. The customer has to make sure at WER GMBH before submitting such a declaration that the preconditions for such a withdrawal still exist, in particular that the goods have not already been ordered bindingly by WER GMBH. Otherwise, the withdrawal shall not be effective, irrespective of any payment being made.
Prices quoted by WER GMBH do not include the statutory value added tax at the current rate. Shipping and packaging costs are not included unless explicitly stated in the offer.
4.Shipping, delivery, transfer of risk
Delivery – insofar as such is requested by the customer – shall be made against payment in advance, unless another method of payment has been agreed between the parties.
The same shall apply in the case of delivery of samples to be sent to the customer at the customer’s request.
The costs incurred in the course of each shipment (shipping and packaging costs) shall be borne by the customer.
WER GMBH is entitled to increase prices for the services to be provided by it in accordance with the contract in line with a general increase in costs if there are more than six weeks between the conclusion of the contract and the agreed delivery date and if there is an increase in wages, material costs or market cost prices or a change in exchange rates thereafter until completion.
WER GMBH is responsible for the selection of the contractor to be commissioned for the shipment. This selection is made after careful and conscientious examination in the interest of the customer.
With the handing over of the goods to the entrepreneur commissioned with their shipment, WER GMBH fulfills its delivery obligation. At the same time, the risk for all damage to the goods is transferred to the customer.
WER GMBH shall fulfill its contractual obligations with all due care and in the interest of the customer. The parties are aware that minor excess or short deliveries of up to 10% may occur for production-related reasons. Even beyond this, a merely minor reduction in usability shall not be taken into consideration and shall not entitle the customer to assert any warranty rights. In the event of a short delivery, we will issue a corresponding credit note. A subsequent production or similar is excluded. In the event of an excess delivery, you will be charged accordingly.
WER GMBH warrants that the products and services provided by it have the agreed quality at the time of transfer of risk or – insofar as an agreement on the quality has not been made – that the products and services are suitable for the use presupposed under the contract or that they are suitable for normal use and have a quality which is usual for items of the same kind and which the customer can expect according to the nature of the item. A guarantee going beyond this is not taken over. Likewise WER GMBH does not grant any guarantee of any kind.
If products provided by WER GMBH are to be provided with laser inscriptions, in particular laser engravings, at the customer’s request, certain contrast and/or color variations may occur even within a series production due to product-related circumstances such as the material composition of natural materials. WER GMBH cannot assume any liability for such color variations of the engraving contrasts.
Also in the case of prints, customary and technically unavoidable tolerances in color, quality, material, light fastness, variability and deviation of material and printing colors as well as weight shall not be grounds for complaints by the customer. The same shall apply to color deviations between the original and reproductions as well as between press proofs and the production run.
WER GMBH shall endeavor to process the contract as quickly as possible, but cannot assume any warranty for specific delivery periods unless a specific delivery period has been expressly assured by WER GMBH in writing.
After receipt of the products delivered by WER GMBH, the customer is obliged to inspect them immediately and with due care. Any defects must be reported to WER GMBH immediately, but no later than 7 days after becoming aware of them. The same shall apply to defects which only become apparent at a later point in time. If a defect is not reported within the period of 7 days, the delivered goods shall be deemed to have been approved.
In the event of a defect for which WER GMBH is responsible, WER GMBH shall be free to choose whether to remedy the defect at its own expense (rectification) or to make a replacement delivery in exchange for the defective goods. If the rectification of the defect fails twice, the customer may, at his discretion, withdraw from the contract or demand a reduction of the purchase price.
WER GMBH shall bear the costs incurred in the course of rectification, in particular travel and transport costs, only if the customer has not taken the products delivered to him to a place other than the place to which the products were first shipped. WER GMBH shall bear the costs of a replacement delivery. Subject to any other agreement between the parties, the replacement delivery shall generally be made to the place to which the products were first shipped.
WER GMBH will not accept returns sent freight collect, unless WER GMBH has given its express written consent. Notwithstanding the foregoing, WER GMBH shall reimburse the customer for any costs incurred in the event of a justified return shipment, provided that the amount of such costs was objectively justified at the time of shipment. Return costs at the lowest rate will not be objected by WER GMBH in principle. Any return shipment shall be coordinated between the parties in advance.
The warranty period is one year from delivery of the respective (contractual) products to the customer.
WER GMBH is liable for damages incurred by the customer only for intent and gross negligence.
Any liability is limited to the foreseeable, typically occurring damage. In particular, no liability can be assumed for circumstances not representing the actual purpose of the contract. Likewise, WER GMBH shall not be liable in the event of slightly negligent breach of immaterial contractual obligations and/or non-material secondary obligations arising from the contract. From the limitations of liability of the clause 6.2 expressly excludes the liability of WER GMBH and its representatives/agents for damages resulting from injury to the life, body or health of the customer.
WER GMBH does not assume any liability within the scope of the contract execution that the execution of the customer’s order does not violate legal provisions, in particular that no rights of third parties are infringed or competition law regulations are affected. It is incumbent on the customer in own interest in the apron to examine and ensure that the achievements and products ordered with WER GMBH are legally harmless. The customer shall indemnify WER GMBH in full against any claims in this respect.
WER GMBH is not liable for damages caused by slight negligence of vicarious agents and legal representatives.
Furthermore, any liability exists exclusively in relation to the customer as contractual partner. Third parties not involved in the contract concluded between WER GMBH and the customer are in no case entitled to claim.
The limitation period for claims directed against WER GMBH, which are not based on intentional conduct attributable to WER GMBH, is one year.
7.Terms of payment, (extended) retention of title
After the conclusion of a contract, WER GMBH is entitled to demand the expected final invoice amount or a lower amount at the discretion of WER GMBH from the customer in advance and to start with the production/commissioning of the contractual goods only after the corresponding receipt of payment. WER GMBH makes use of this right especially in relation to new customers. In this respect, WER GMBH points out that the contractual items/advertising materials are goods to be produced individually for the respective customer, with regard to which WER GMBH cannot regularly make advance payments. The data, films, tools, screens and embroidery cards etc. required for the production of an order placed with WER GMBH shall be provided by WER GMBH, screens and embroidery cards etc. will not be stored after completion of the order.
If the contract includes delimitable partial services such as, but not limited to, the preparation of concepts or similar, partial payments on the total fee shall be due after their respective performance in accordance with the share of the partial service in the total service. WER GMBH shall be entitled to demand these without prejudice to clause 7.1, i.e. in particular in the event that the final invoice amount to be expected from WER GMBH is not already demanded in advance.
Advance payments by the customer pursuant to clauses 7.1 and 7.2 above shall be offset against the final invoice. At the time of the transfer of risk, any (remaining) amount still to be paid by the customer shall be due for immediate payment and without deduction. The customer shall be in default of payment no later than 30 days thereafter. The customer has to compensate WER GMBH for the damage caused by default plus 8 percentage points above the respective base interest rate (default interest).
All goods delivered to the customer remain the property of WER GMBH until the total amount has been paid in full. The customer assumes full liability for such goods owned by WER GMBH.
The buyer is entitled to consume the products delivered to him himself or to sell them in the ordinary course of business. However, this right of consumption and sale may be revoked by WER GMBH if the customer defaults on its payment obligations. By way of security, the customer hereby assigns to WER GMBH in full all claims which it acquires against its customer or third parties from the sale and claims from insurance benefits due to destruction of or damage to the goods subject to retention of title or due to tortious acts. The customer is revocably authorized to collect these claims. WER GMBH shall only issue the revocation and collect the assigned claims if the customer is in default with its payment obligations, if it has suspended payments or if a petition for the institution of bankruptcy or composition proceedings has been filed.
In no case shall a customer be permitted to set off claims asserted by them. This does not apply exceptionally to claims that have been titled by judgment or otherwise or are undisputed. Furthermore, the customer is not entitled to refuse performance on the basis of warranty claims unless the customer’s notice of defect has been acknowledged in writing by WER GMBH.
Services rendered by WER GMBH customers within the scope of a contractual relationship – which may also merely be in the process of being initiated – such as (but not limited to) the creation of concepts, designs, drafts, etc. shall be the exclusive property of WER GMBH with regard to (industrial property) rights such as copyrights/design patents/trademark rights, etc. manifesting themselves in these preliminary services. Rights of use and/or exploitation of any kind whatsoever are not granted to the customer unless otherwise agreed. This also applies if the results of the work have been produced with the assistance of and on the instructions of the customer. The customer is to be regarded in such cases if necessary as joint authors, waives opposite WER GMBH however irrevocably the asserting of use, utilization and/or other rights coming into question after copyright law.
By placing the order, you ensure that the data material provided to us by you in the course of executing the order is either free of third-party rights or that you have been granted all rights of use thereto by the respective entitled party, i.e. that third parties cannot assert any rights to the services and/or parts thereof provided to you in accordance with the contract. In this respect all rights for the (data) material left to WER GMBH are to be clarified by the customer before placing of order. The above provision includes in particular logos/identifiers and other files intended for the respective order.
WER GMBH stores and uses the customer data transmitted to it for order processing and passes it on to third parties for this purpose if necessary. WER GMBH also reserves the right to use the data for self-promotion purposes. The customer may object to the use of the data for advertising purposes at any time.
Customer-related data will not be passed on to third parties for advertising purposes.
Should individual provisions of these Terms and Conditions be or become legally ineffective or incomplete in whole or in part, this shall not affect the validity of the remaining provisions. The defective or incomplete provision shall be reinterpreted into a provision whose economic and legal meaning is as close as possible to the defective provision, but which is effective and/or complete.
All contracts concluded with WER GMBH shall be governed exclusively by the laws of the Federal Republic of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).
12.Place of jurisdiction, place of performance
Special place of jurisdiction for legal disputes arising from a business relationship is Coesfeld. However, WER GMBH reserves the right to sue the customer at the court of the customer’s place of residence or registered office.
The place of performance for all rights and obligations arising from the contract shall be exclusively D-48308 Senden.