General terms of delivery: version 06_2020
§ 1 General
(1) These General Terms of Delivery and any separate contractual agreements form the basis of all deliveries and services of Blaue Erdbeere Werbetechnik GmbH. Deviating purchasing conditions of the buyer do not become part of the contract, neither through acceptance of the order nor through failure to object.
(2) These General Terms of Delivery apply to businesses within the meaning of § 310 Abs. 1 BGB and to legal persons under public law or a special fund under public law.
(3) Individual agreements with the client (including collateral agreements, additions and amendments) can be agreed in individual cases and take precedence over these purchasing conditions. They become effective only through the conclusion of a written contract or a written confirmation by Blaue Erdbeere Werbetechnik GmbH. The provisions agreed in that context are then supplemented by our General Terms of Delivery set out here.
§ 2 Offer – order – conclusion of contract
(1) All offers and information on delivery times are deemed subject to change and non-binding.
(2) A binding contract is deemed to have been concluded when the order/purchase order has been received by Blaue Erdbeere Werbetechnik GmbH and confirmed in writing.
(3) All details such as colour, dimensions, properties or material quality count as binding, as stated in the order confirmation. Checking these details is carried out by the client. We reserve the right to make technical changes and changes in form and colour, provided these lie within what is reasonable. In the event of deviations from the order, whatever the reason, checking the details falls to the client.
(4) Documents such as illustrations, drawings, photomontages and details of dimensions and performance are only approximately authoritative, unless they are expressly designated as binding.
(5) All working documents, electronic data and records produced on the agency’s side in the course of carrying out the order remain with the agency. The customer cannot demand the handover of these documents and data. In return for payment of the agreed fee, the agency owes the agreed service, but not the intermediate steps leading to that result in the form of sketches, drafts, production & raw data, etc.
(6) For samples, sketches, drafts and other project-planning services expressly requested by the client, the agreed fee is payable even if the order is not placed. Ownership passes to the client after payment of the fee.
(7) The client must transmit all print data to us in the file formats we have named, at the client's cost and risk. In particular, the client is solely and exclusively responsible for the completeness and correctness of the data sent to us. No check is made of the data transmitted by the client or the client's agent. We accept no liability for the print quality of data supplied. If in doubt, the client can order a chargeable press proof/proof print.
(8) After print approval has been given by the client, no further changes can be made.
(9) For advertising installations or other works that are offered including installation, the following are not included in the price: the low-voltage-side installation, the provision of scaffolding or possibly lifting equipment, any services of other trades, such as masonry, plastering or sealing work, the costs of a proof of structural stability, disposal costs, static calculations and verifications, insofar as these are not expressly listed in writing in the order confirmation
§ 4 Delivery time, delay, force majeure
(1) Delivery dates are only valid if they have been expressly confirmed in writing by Blaue Erdbeere Werbetechnik GmbH.
(2) Compliance with agreed deadlines for deliveries and/or services requires the timely receipt of all documents to be supplied by the purchaser, the necessary permits and approvals, in particular plans and print data, and compliance by the purchaser with the agreed payment terms and other obligations. If these conditions are not met in time, the deadlines are extended appropriately. The client may exercise rights under § 376 HGB only if Blaue Erdbeere Werbetechnik GmbH is responsible for the delay in delivery. This provision does not entail a reversal of the burden of proof.
(3) If the non-compliance with the delivery time is due to force majeure, such as natural disasters, epidemics, armed conflicts, terrorism, sabotage, or due to labour disputes or other events that lie outside the sphere of influence of Blaue Erdbeere Werbetechnik GmbH, Blaue Erdbeere Werbetechnik GmbH is released from its performance obligations for the duration of the event and the delivery time is extended appropriately. Blaue Erdbeere Werbetechnik GmbH will inform the client of such circumstances as soon as possible. If the duration of the event exceeds a period of 6 months, the client is entitled to withdraw from the contract.
(4) If the ordering party is in default of acceptance or culpably breaches other duties to cooperate, Blaue Erdbeere Werbetechnik GmbH is entitled to invoice the damage arising to that extent, including any additional expenses. Claims or rights going beyond that remain reserved.
(5) If Blaue Erdbeere Werbetechnik GmbH is in default and the purchaser suffers a loss as a result, the purchaser is entitled to demand a lump-sum compensation for default. It amounts to 0.5% for each full week of delay, but in total no more than 5% of the value of that part of the total delivery which, as a result of the delay, cannot be used in time or in accordance with the contract.
§ 5 Retention of title
(1) The goods delivered remain the property of Blaue Erdbeere Werbetechnik GmbH until payment in full.
The purchaser is entitled to resell the respective subject matter of the contract in the ordinary course of business. The client hereby assigns to Blaue Erdbeere Werbetechnik GmbH all claims, regardless of whether the purchased item has been resold without or after processing, in the amount of the purchase price including the value added tax applicable in each case, and Blaue Erdbeere Werbetechnik GmbH hereby accepts the assignment. In the event of default, the client is obliged to name the debtor of the assigned claim. Blaue Erdbeere Werbetechnik GmbH is entitled to disclose the assignment and to collect the respective claim itself.
§ 6 Passing of risk, scope of delivery, goods not called off
(1) Unless otherwise agreed in the order confirmation, „delivery ex works“ is agreed.
(2) If „freight-free“ delivery has been agreed, the risk passes to the ordering party:
a) in the case of deliveries without erection or installation, when the item to be delivered has been handed over for dispatch or collected. Insurance against transport risks is taken out only on the express written instruction of the ordering party, at the ordering party's expense.
b) for deliveries with erection or installation, on the day of acceptance at the seller's own premises or at the installation site named in the order confirmation.
(3) The risk passes to the customer if dispatch, delivery, the start or the carrying out of erection or installation, or taking over at the customer’s own premises, is delayed for reasons for which the customer is responsible, or if the customer is otherwise in default of acceptance.
(4) Goods not called off may, after a request to call them off and with a reasonable deadline set, be realised or disposed of once the deadline set has expired.
(5) Blaue Erdbeere Werbetechnik GmbH reserves a right of retention over the samples, drafts, raw materials and other items supplied by the client until all due claims arising from the business relationship have been satisfied in full.
(6) Changes to the execution which prove technically necessary and are reasonable for the buyer remain reserved.
(7) Necessary changes, including those due to official requirements, count as an extension of the order. Any costs that arise are borne by the contractor.
§ 7 Warranty / liability
(1) All claims for defects presuppose the inspection and notification duties owed under § 377 HGB.
(2) If there is a defect in the delivered item, Blaue Erdbeere Werbetechnik GmbH is entitled, at its option, to remedy the defect or to deliver a new, defect-free item. If the goods have been taken, after delivery, to a place other than the agreed place of performance, the ordering party bears all costs of any additional expense that arises.
(3) The purchaser may demand rescission or a price reduction only when subsequent performance has failed on the second attempt as well.
(4) Natural wear and tear, or damage that arises after the transfer of risk as a result of faulty or negligent handling, excessive strain, or that arises due to particular external influences, is excluded from the warranty.
(5) Insignificant deviations as per §2 Abs. 3 do not constitute defects of the item delivered.
(6) Blaue Erdbeere Werbetechnik GmbH is liable under the statutory provisions where the ordering party asserts claims for damages based on intent or gross negligence. In cases of simple negligence, liability is limited to the foreseeable damage typical of the contract.
(7) The limitation period for claims for defects is 24 months, calculated from the transfer of risk.
(8) Where Blaue Erdbeere Werbetechnik GmbH supplies goods according to the constructions or other specifications set by the customer, the customer is liable for any infringement of industrial property rights and other third-party rights. If claims arising from this are brought against Blaue Erdbeere Werbetechnik GmbH, the customer shall indemnify Blaue Erdbeere Werbetechnik GmbH against all costs and expenses. The customer undertakes, upon first request by Blaue Erdbeere Werbetechnik GmbH, to provide security in the amount of the indemnification claims to be expected.
(9) Blaue Erdbeere Werbetechnik GmbH is in no case liable for samples, artwork, plans or data provided by the ordering party, in particular data carriers.
§ 8 Prices and terms of payment
(1) All prices are net prices plus statutory VAT, currently at 19%, and apply ex works. Freight, packaging, insurance and any shipping costs are not included, unless these costs were expressly offered and confirmed.
(2) Only the delivery components stated in the order confirmation belong to the scope of delivery.
(3) Additional costs arising from late or missing delivery of data, or from late production approval by the client, may be invoiced to the client in addition and set aside the agreed delivery periods.
(4) Unless otherwise agreed, the terms of payment are that the sum falls due within 14 days of receipt of the invoice, without any deduction. The client automatically falls into default on expiry of a period of 14 days from the issuing of the invoice.
(5) The buyer has rights of set-off only if the buyer’s counterclaims have been established by final judgment, are undisputed, or have been acknowledged by Blaue Erdbeere Werbetechnik GmbH.
§ 9 Data protection
(1) The purchaser undertakes to comply with the provisions of the
Federal Data Protection Act and the EU General Data Protection Regulation when handling
personal data and, exclusively for performance of the contract, to collect,
process or store them.
Personal data may not be passed on to third parties unless there is
a statutory obligation of the client to do so.
(2) Specimen copies of the orders may be used by Blaue Erdbeere Werbetechnik GmbH as quality samples for advertising purposes, including at trade fairs and exhibitions.
(3) The customer grants Blaue Erdbeere Werbetechnik GmbH the right to use photos and descriptions of the project for advertising purposes on its website and on social networks without restriction, unless this is expressly excluded when the order is placed.
§ 10 Applicable law, place of jurisdiction
(1) For all legal relationships between the seller and the buyer, the law of the Federal Republic of Germany governing legal relationships between domestic parties shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The place of jurisdiction is the court competent for Blaue Erdbeere Werbetechnik GmbH. Blaue Erdbeere Werbetechnik GmbH is, however, entitled to bring an action at the client’s head office.
General Terms and Conditions of Purchase (AEB) of Blaue Erdbeere Werbetechnik GmbH
§ 1 Scope of application
(1) The following “General Terms and Conditions of Purchase” (hereinafter “AEB”) apply to all suppliers and service providers (hereinafter “Supplier”) who are in a business relationship with Blaue Erdbeere Werbetechnik GmbH.
These apply both to the delivery of movable items and to the provision of any kind of services, regardless of whether the supplier provides the service itself or in turn purchases it from other providers. The purchasing conditions are limited to entrepreneurs under § 14 BGB, a legal person under public law and public-law institutions.
(2) Exclusively these purchasing conditions apply. General terms and conditions of the supplier that conflict with these become part of the contract only if Blaue Erdbeere Werbetechnik GmbH has granted its express consent in written form. Acceptance without reservation of deliveries and services by Blaue Erdbeere Werbetechnik GmbH does not constitute recognition of the supplier's general terms and conditions of business or of delivery.
(3) All individual agreements made with suppliers in the individual case (including collateral agreements and amendments) take precedence over these AEB. For them to be effective, they must have been concluded in the written form of a contract. Provisions not regulated in this contract are supplemented by the General Terms and Conditions of Purchase of Blaue Erdbeere Werbetechnik GmbH.
(4) The AEB also apply as a framework agreement to future contracts for deliveries and services with the supplier, without any further reference to that being required.
§ 2 Orders – conclusion of contract
(1) Only orders of Blaue Erdbeere Werbetechnik GmbH that are confirmed in writing or issued in writing are binding. Deliveries and services for which no written orders or a written order confirmation from the supplier are available are not recognised as binding. The mere transmission of an order confirmation does not constitute the conclusion of a contract.
(2) The supplier’s offer is to be drawn up in accordance with the enquiry. In particular with regard to the type and material of the work. The supplier must expressly point out any deviations in the offer. The preparation of cost estimates or offers must be free of charge for Blaue Erdbeere Werbetechnik GmbH, unless a written order pursuant to §2 (1) for the preparation of a chargeable cost estimate was issued beforehand.
(3) A written order from Blaue Erdbeere Werbetechnik GmbH must be confirmed by the supplier in writing, by letter or email, within 7 days of receipt by means of an order confirmation. A binding contract is formed only when the order confirmation matching the order has been received. An order confirmation arriving after the stated acceptance period of 7 days has expired is deemed a new offer pursuant to § 150 (2) BGB and entitles Blaue Erdbeere Werbetechnik GmbH to withdraw from the order or to confirm the order again in writing.
(4) Oral or telephone agreements, in particular in the case of changes after the order has been placed, always require written confirmation by Blaue Erdbeere Werbetechnik GmbH in order to be valid.
§ 3 Delivery – transfer of risk – delivery time
(1) The delivery time stated in the order is binding. Early deliveries are permitted only with the consent of Blaue Erdbeere Werbetechnik GmbH.
(2) A service (e.g. installation) is deemed fulfilled only when a member of staff or a competent authorised representative of Blaue Erdbeere Werbetechnik GmbH has confirmed acceptance in writing, stating the date and time. Minor material defects or damage must be recorded in writing and countersigned.
(3) In the event of foreseeable delivery delays, the supplier is obliged to inform Blaue Erdbeere Werbetechnik GmbH without delay in writing, stating the reasons and the expected delay.
(4) In the event of non-performance of deliveries and services within the agreed delivery time, or of delay, Blaue Erdbeere Werbetechnik GmbH has the right to withdraw and to claim damages in accordance with the statutory provisions. The provisions in paragraph 3 remain unaffected.
(5) Except in the event of force majeure, Blaue Erdbeere Werbetechnik GmbH may demand a contractual penalty, due immediately, of 0.5% of the order sum affected by the delay per working day of the delivery delay, but no more than 10% of the total order value. Should further damage from delay arise due to fault on the part of the supplier, the contractual penalty is set off against the total delay damage claimed.
(6) The supplier is fully liable for financial damage incurred by Blaue Erdbeere Werbetechnik GmbH through the hire of work equipment, such as lifting platforms, cargo cranes or similar, which cannot be used because of the delay in delivery.
(7) Unconditional acceptance of the delayed delivery does not contain a waiver of claims for compensation and contractual penalties arising from the delayed delivery or performance.
(8) For deliveries with erection or installation, the transfer of risk takes place upon written acceptance by Blaue Erdbeere Werbetechnik GmbH, also through accidental loss, damage or fault by third parties. For deliveries without erection or installation, the transfer of risk takes place upon receipt of the goods by an authorised representative of Blaue Erdbeere Werbetechnik GmbH.
Where goods are returned to the supplier because of defects or other faults for which the supplier is responsible, the return to the supplier is at the supplier’s risk.
(9) The supplier undertakes to take out corresponding transport insurance in order, in the event of any transport damage, to assign the claims against the transport insurance to Blaue Erdbeere Werbetechnik GmbH without undue delay.
§ 4 Prices – payment terms
(1) The price stated in the order is binding. All prices are subject to statutory VAT, unless it is a foreign company with a corresponding VAT ID or a company acting under §19 UstG.
(2) Unless expressly agreed otherwise, all deliveries are made “delivered free” to the place stated in the order, including all incidental costs, except where Blaue Erdbeere Werbetechnik GmbH commissions a third party for freight and transport to the place of destination.
(3) Invoices must be transmitted to Blaue Erdbeere Werbetechnik GmbH in written or electronic form, stating the invoice number, order number and the date the performance was rendered, as well as the quantities and unit prices stated in the order and the statutory VAT shown. A payment can only be made under these conditions. For payment delays arising from this, Blaue Erdbeere Werbetechnik GmbH accepts no liability whatsoever for default interest or reminder fees.
(4) Unless expressly agreed otherwise, payments are made within 14 days less 3% cash discount or within 30 days net.
The period applies from the due date of the claim and from receipt of both the goods or performance of the service and the properly issued invoice under §4 Abs. (3). For deliveries made before the agreed delivery date, the payment falls due on the agreed delivery date.
(5) Blaue Erdbeere Werbetechnik GmbH is entitled to rights of set-off and retention in the event of non-performance of the contract, to the extent provided by law. Claims asserted against the supplier arising from defective or incomplete performance entitle Blaue Erdbeere Werbetechnik GmbH to withhold payments due until complete, defect-free performance.
(6) Only counterclaims established by final judgment or that are undisputed entitle the supplier to set-off or retention.
§ 5 Deployment of personnel by the supplier
The supplier undertakes to:
(1) to carry out its deliveries and services with its own staff who hold a valid work permit of the Federal Republic of Germany, and in accordance with the statutory provisions.
(2) to have instructed the staff on the occupational health and safety guidelines and the requirements under the Jugendarbeitsschutzgesetz and to comply with all official or statutory requirements connected with this.
(3) for regular checks of compliance with the requirements named in Abs. (2).
(4) to pay its employees the statutory minimum wage under the MiLoG and to prove this accordingly on request.
(5) also to oblige subcontractors commissioned by him to pay in accordance with the MiLoG.
(6) to indemnify Blaue Erdbeere Werbetechnik GmbH against all third-party claims regarding its obligation under Abs. (4) and to assume liability in full also for any subcontractors that may be engaged.
(7) to award deliveries or services in whole or also in part to subcontractors only after prior written consent from Blaue Erdbeere Werbetechnik GmbH. If Blaue Erdbeere Werbetechnik GmbH gives its consent, the subcontractors must be bound in writing to confidentiality and to data protection. The consent of Blaue Erdbeere Werbetechnik GmbH does not establish any legal claim of the subcontractor.
(8) to assume liability for subcontractors for their fault as for its own fault.
(9) to inform its employees or subcontractors who carry out work within the grounds of Blaue Erdbeere Werbetechnik GmbH in performance of the supply contract that they are subject to the provisions of the works rules of Blaue Erdbeere Werbetechnik GmbH and that the regulations in place for entering the premises must be observed.
(10) to sole liability for damage to their material or tools that their staff use on the premises of Blaue Erdbeere Werbetechnik GmbH, unless it is damage caused intentionally or by gross negligence, or damage from injury to body, life or health.
(11) to take out liability insurance that covers work on third-party properties. On request, the supplier must provide proof of this insurance before or within the performance period.
§ 6 Warranty – complaint – guarantee
(1) Delivery must be made free of material defects and defects of title and in accordance with the current statutory and official regulations. If a defect is present, Blaue Erdbeere Werbetechnik GmbH is entitled to the statutory warranty claims. We notify the supplier of defects in the delivery without undue delay after they are identified. In this case Blaue Erdbeere Werbetechnik GmbH is entitled both to a reduction of the purchase price and to withdrawal from the contract.
(2) Where a delivery or service has not been properly performed, in particular in the case of material defects or defects of title, Blaue Erdbeere Werbetechnik GmbH grants the supplier a reasonable period for rectification or replacement delivery. The period depends on the urgency. Where this would be unreasonable, for example because of a possible hazard to operational safety or the imminent occurrence of further damage, no period needs to be set. Blaue Erdbeere Werbetechnik GmbH is entitled to remedy a defect or damage itself or to have it remedied by third parties. In this case, Blaue Erdbeere Werbetechnik GmbH will notify the supplier without undue delay and, if possible, beforehand.
(3) For warranted characteristics or qualities, the supplier assumes the full warranty.
(4) The statutory provisions apply to all rights in the case of material defects and defects of title in the goods and in the case of other breaches of duty by the supplier.
(5) Deliveries are checked, as far as possible, on delivery. Defects or damage are notified to the supplier without undue delay once they are known. Notice of defects counts as without undue delay and in time if it is given to the supplier within 7 working days of receipt of the goods. The duty to give notice of defects discovered later remains unaffected.
(6) In the case of incomplete delivery of products or services that belong together under the order, Blaue Erdbeere Werbetechnik GmbH is entitled to withdraw from the entire order, or to make a cover purchase at the supplier’s expense, if the supplier does not guarantee that subsequent delivery of the missing quantity or performance of the missing service will take place without undue delay or within a reasonable period. Whether a period is reasonable follows from the planned use and the necessity of the goods or service ordered.
(7) Costs arising for the supplier in the event of subsequent improvement (including any deployment costs, e.g. for lifting platforms, cranes, boom lifts or similar) are borne by the supplier if it turns out that a defect existed. The supplier has no claim to necessary work equipment being provided by the customer.
§ 7 Product liability
In the event that we are held liable under the ProdHaftG or on the basis of other liability irrespective of fault, Blaue Erdbeere Werbetechnik GmbH may require the supplier to indemnify it against any liability if the damage was caused by a defect in the goods supplied by the supplier. This also applies in the case of contributory causation corresponding to the respective share. The supplier is obliged to bear all expenses and costs incurred by us and our customers. This includes the costs of any pursuit of legal claims or of a recall. Further statutory claims remain unaffected.
§ 8 Infringement of industrial property rights
The supplier guarantees that the delivery and/or the service and its use in accordance with the contract do not infringe any patent rights, copyrights or other protective rights of third parties. The supplier shall indemnify Blaue Werbetechnik GmbH against all third-party claims asserted for infringement of the protective rights named above, where these are based on a culpable breach of duty by the supplier. In this case, the supplier bears all costs incurred in avoiding and/or removing infringements of protective rights.
§ 9 Documents, confidentiality, rights of use, data protection
(1) The supplier is obliged to keep confidential from third parties the business matters that have become known to it through carrying out the order. The information and data transmitted are to be used by the supplier only for the agreed purpose.
(2) Models, samples, drawings, data, drafts, plans and other documents that Blaue Erdbeere Werbetechnik GmbH makes available to the supplier remain the property of Blaue Erdbeere Werbetechnik GmbH and are to be returned on demand at any time. A right of retention on the part of the supplier is excluded. The supplier must observe the copyrights.
(3) The supplier grants Blaue Erdbeere Werbetechnik GmbH a right of use and exploitation, unlimited in time, in all plans, drawings, graphics, calculations and other documents that the supplier creates, develops or designs on behalf of Blaue Erdbeere Werbetechnik GmbH, or has had produced by third parties, in all known media forms including electronic media, the internet and online media, on all image, sound and data carriers, for the purposes contractually agreed or presupposed by the contract.
(4) The supplier undertakes to comply with the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz) and the EU General Data Protection Regulation when handling personal data, and to collect, process or store such data exclusively for the performance of the contract.
Personal data must not be passed on to third parties insofar as the supplier is under no legal obligation to do so.
(5) The contractor may refer to the existing business relationship with the client only with the client’s prior written consent or insofar as this is indispensable for the performance of the contract.
(6) The rights and obligations set out in § 9 Abs. (1-5) expressly also apply beyond the end of the business relationship.
§ 10 Place of performance – place of jurisdiction – severability clause
(1) The place of performance for all deliveries and services is the registered office of Blaue Erdbeere Werbetechnik GmbH in 47803 Krefeld.
(2) If the supplier is a merchant, a legal person under public law or a special fund under public law, the following applies: the place of jurisdiction – including international jurisdiction – for disputes of any kind, including actions on bills of exchange, is the place of the German court with local and subject-matter jurisdiction for our registered office. Blaue Erdbeere Werbetechnik GmbH is also entitled to sue the supplier at the supplier’s general place of jurisdiction.
As regards other suppliers, the statutory regulation remains in place.
(3) The law of the Federal Republic of Germany applies. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
(4) Should a provision in these AEB be or become invalid, the validity and enforceability of the remaining clauses remain unaffected by this. The purchaser undertakes to agree, together with Blaue Erdbeere Werbetechnik GmbH, on a replacement provision that is valid, enforceable and suitable for the purpose of the order and for the protection of the interests of both parties. § 139 BGB does not apply.