Conditions of Use
Delivery and payment terms and conditions (last change: 1. Oktober 2015)
applicable to transactions with companies/entrepreneurs via our Online-Shop (not applicable for private persons)
The company elasto form KG is the operator of the online-shop under elasto.de and is responsible for the content of the website. The contractual partner for shop transactions is elasto form KG, Franz-Sollfrank-Straße 6, D-92237 Sulzbach-Rosenberg (Germany).
1.1 These Delivery and Payment terms and conditions apply exclusively to buyers who use the goods in the course of their independent professional, commercial, governmental or official activities, and not to private individuals.
1.2 Our Delivery and Payment terms and conditions shall only apply exclusively in which the customer agreed to upon ordering. All our quotations, deliveries, and services are provided exclusively on the basis of these delivery and payment terms and conditions. These terms and conditions are part of all contracts for deliveries or services we close with our contract partners. All previous business terms and conditions are hereby declared invalid.
1.3 If the placed purchase order varies from our Delivery and Payment terms and conditions, our Delivery and Payment terms and conditions shall only apply. Even if we do not contest the variations and only if we confirm in writing that they have been acknowledged.
1.4 Our Delivery and Payment terms and conditions shall also only apply exclusively for future business transactions even if not specifically taken in to reference for the buyer when a confirmed order from us has been received.
2. QUOTATIONS AND PRICES
2.1 With your order, you submit a binding offer for us to conclude a contract with you. We can accept this offer by sending you an order confirmation by e-mail or by delivering the goods you have ordered. Initially you receive confirmation that your order has been received, by e-mail to the address you specified (confirmation of order receipt). However, a purchase contract is only concluded upon sending out our order confirmation to you by e-mail, fax or mail, or upon delivering the goods you have ordered.
2.2 Quotations and prices are provided without any engagement and only become binding by means of our order confirmation (via E-Mail, fax or mail) or with delivery of the goods. We are entitled to accept the contract offer implied by the order within 2 weeks from the receipt. If the customer feels that the order confirmation deviates from his order, he shall report the alleged deviations in writing without delay upon receipt, at the latest within one week from the date of our order confirmation. If the customer fails to review the order confirmation and does not report any deviations without delay, our order confirmation will be deemed correct and binding for both parties.
2.3 To be valid, any side agreements made prior to or at the execution of the contract require our written approval.
2.4 Any late changes (changes after the release for print) on request of the customer as well as the resulting production stop will be charged to the customer.
2.5 All our information, dimensions, weights, illustrations, descriptions, and drawings in our Online-Shop, price lists, catalogues, and other printed material have been determined only approximately, though to the best of our abilities; however, they are not binding for us. They do not represent any guaranteed properties, but merely descriptions of our deliveries or services. We reserve the right to changes in the range of products and changes of the technical and visual design.
2.6 The indicated prices in the Online-Shop are in Euro, subject to the applicable VAT at the time of the delivery, unless specified otherwise. Shipping costs and costs for individual printing/upgrading are not included in the price and will be charged additionally. You can access the shipping cost table at any time from any page of our online shop, and may print it through your web browser. The actual shipping costs are displayed during the ordering process after you log on.
3. PAYMENT TERMS
3.1 Payment shall be made either via PayPal or in advance by bank transfer. Purchasers residing in Germany or Austria have the additional option of purchase on account, subject to creditworthiness. In the event of payment in advance, the amount has to be credited to our account within 7 days from the order date. Otherwise the order is cancelled and the goods are made available for sale.
3.2 We are authorised to assign our claims arising from our business relationships.
3.3 Set-off with possible counter-claims of the customer is only permitted in case of claims that are undisputed or legally established. The assertion of a right of retention by the customer is excluded insofar as such claims are not based on the same contractual relationship.
3.4 We must be informed of any errors in our invoices promptly upon receipt of the invoice and no later than within 1 week. Should the invoice recipient not issue a complaint within one week, this is deemed to constitute acceptance of the invoice without protest.
4. RETENTION OF TITLE
4.1 All goods delivered by us remain our property until full payment is made and all claims from the business relationship are satisfied. Goods subject to retention of title may only be sold in the course of the normal business if it is made sure that the right to the receivable from the resale is transferred to us and the customer passes the retention of title on to his own customers. If the realisable value of all collateral provided to us exceeds the collateralised receivables by more than 20%, we will release the collateral to this extent at our own discretion on request of the customer. The customer transfers his receivables from the resale or other utilisation of the goods, together with all associated rights, to us in advance. The resale authorisation may be revoked at any time. On request, the customer shall name the buyer of the goods subject to retention of title in writing to us.
4.2 Any physical or legal access to the goods subject to retention of title or their damage or loss shall be communicated to us in writing without delay; in the event of seizure, the seizure report or writ of seizure shall be submitted to us. In the event of third-party access, the customer shall bear all costs required for the removal of the access, especially within the scope of third-party action against execution, and for the reprocurement of the goods.
4.3 The customer transfers all receivables resulting from the resale or other legal reasons in connection with the goods subject to retention of title (including all balance receivables from the account current) to us as collateral in advance. Subject to revocation, we authorise the customer to collect the receivables transferred to us for his account on his own behalf. This authorisation can be revoked if and as long as the customer is in default of payment of a collateralised receivable, if he is insolvent, or if insolvency proceedings have been applied for over his assets.
4.4 Processing or alteration of the goods subject to retention of title does not render them property of the customer. If the delivered goods are connected, processed, or mixed with other items, this takes place by our order; however, this does not establish any obligation.
5.1 Delivery shall take place by means of shipment to the address specified on the order (sale by delivery to a place other than the place of performance).
5.2 The delivery terms and deadlines specified by us are non-binding unless anything to the contrary was expressly agreed upon in writing.
5.3 The delivery term ends on the day the goods leave the supplier or are stored if delivery is not possible.
5.4 The delivery takes place for the account and at the risk of the customer, also for prepaid deliveries; the risk passes to the customer as soon as the shipment is submitted to the person performing the transport. If the submission or the shipment is delayed due to a reason for which the customer is responsible, the risk shall pass to the customer on the day the goods are ready for delivery.
5.5 We reserve the right to select a suitable delivery type and method, unless agreed otherwise in the respective order. Transport insurance will only be taken out on special request and at the expense of the customer.
5.6 We are entitled to make partial deliveries, which will be due for payment under our payment terms.
5.7 In the event of force majeure or other unforeseeable circumstances or other circumstances for which we are not responsible, such as procurement bottlenecks, labour disputes, operational malfunction, vandalism, government intervention, energy shortcuts, no matter whether these take place at our plant or at one of our suppliers, which hinder us from duly fulfilling our delivery commitments, the delivery period shall be extended by the duration of the hindrance and under consideration of a reasonable start-up time. If the hindrance is not expected to end within a reasonable time period, we shall be entitled to withdraw partly or entirely without any obligation to deliver later or to pay compensation for damages. Such withdrawal does not affect our claims from any partial deliveries that have already taken place.
5.8 In the event of default of delivery and after the expiry of a reasonable grace period of which the customer shall provide due evidence, we will pay a compensation of 0.5% for every completed week of default, up to a maximum of 5% of the shipment affected by the default.
5.9 Both damage claims of the customer due to late delivery as well as damage claims instead of the service which exceed the limits specified in 5.8 are excluded in all cases of late delivery, even after the expiry of a grace period granted to us. This does not apply if liability is mandatory in the case of intentional acts, gross negligence, or due to injury to life, body, or health. Within the scope of legal provisions, the customer may only withdraw from the contract if we are responsible for the delay of the delivery. The aforesaid regulations do not involve a change of the burden of proof to the disadvantage of the customer.
5.10 On request, the customer is under the obligation to inform us within a reasonable period whether he withdraws from the contract due to the delay of the delivery or still insists on the delivery.
5.11 If, on request of the customer, the shipment or delivery is delayed by more than 1 month after the notification that the goods are ready for shipment, we may bill the customer for storage fees amounting to 0.5% of the price of the items of the delivery for every started month, up to a maximum of 5%. This does not affect the right of the contract parties to provide evidence of higher or lower storage costs.
6. DEFAULT OF ACCEPTANCE OF THE CUSTOMER
6.1 If the customer is in default of acceptance or debtor's default, the risk of incidental loss or incidental deterioration of the goods shall pass to the customer as soon as he is in default of acceptance. In this case, we shall be entitled to set a reasonable grace period at the expiry of which we may store the goods at our warehouse and charge storage fees pursuant to Section 5.11 or store the goods at a forwarder. This does not affect our right to withdraw from the contract and claim compensation for damages.
6.2 Within the scope of a damage claim, we may request 30 % of the agreed price as compensation without providing evidence, unless the customer provides evidence that he did not incur any damage or his damage was much lesser than the lump-sum compensation.
7.1 Immediately upon delivery, the contract partner shall inspect the goods for any defects.
7.2 The contract partner shall submit complaints due to goods that are obviously defective or whose properties obviously deviate or due to delivery of goods that are obviously different from the ones ordered; the complaint shall be submitted without delay in writing, at the latest within 3 days from the delivery or, if the defect was not identifiable during the immediate inspection, within 1 week from the detection of the defect. The warranty will expire if defects are not duly reported. This does not affect the inspection and reporting obligations pursuant to Section 377 of the German Commercial Code. The maximum warranty term is 1 year from the delivery of the goods.
7.3 Minor deviations from the agreed properties or minor impairment of the usability do not justify defect claims. Trade and industry-typical tolerances do not justify complaints due to defects. The customer shall accept short and surplus deliveries in the range of up to 10%. As a relatively small amount of defective goods cannot be avoided during the production of plastic items and similar goods, a share of up to 5% of the total quantity shall not be objected to, no matter whether the defect was caused by the processing or the printing.
7.4 Defects in a part of a shipment do not justify the rejection of the entire shipment.
7.5 In the event of a justified, duly submitted notice of defects, we reserve the right to rectify the defect at our own discretion, i.e. by eliminating the defect or by replacing the defective goods the customer returns to us with new goods in accordance with the contract (replacement delivery) free of charge. Only if the rectification fails twice, the customer may withdraw from the agreement or request a discount on the price.
7.6 Damage claims are regulated in Section 8. Further claims of the customer or claims other than those regulated in Section 7 against us and our agents due to defects are excluded.
7.7 If the customer objects to the shipment or parts thereof, he may not consume, process, or resell any of the goods objected to. If he does nevertheless, the objection shall be void.
8. OTHER DAMAGE CLAIMS
8.1 Damage and reimbursement claims of the customer (hereinafter referred to as "damage claims"), no matter for what legal reason, especially due to the violation of obligations and tortious acts, are excluded.
8.2 This does not apply if liability is mandatory, for example under the Product Liability Act, in the case of intentional acts, gross negligence, or due to injury to life, body, or health, or due to the violation of material contractual obligations. However, damage claims due to the violation of material contractual obligations are limited to contractually typical, foreseeable damages and only up to the amount of the coverage of our liability insurance, but at least up to an amount of EUR 500,000 per incident, unless an intentional act or gross negligence is on hand or liability is mandatory due to injury to life, body, or health. The aforesaid regulations do not involve a change of the burden of proof to the disadvantage of the customer.
9.1 All copyrighted utilisation rights on own drawings and designs, originals, films, etc. in all procedures and for all utilisation purposes remain with us, unless expressly agreed otherwise.
9.2 Production material such as films, lithographic prints, printing plates, artwork, screens, punches, and tools remain our property in any case. Making these available to third parties, duplication, or further use is subject to our approval. Drafts are subject to intellectual property rights. The customer bears the sole responsibility for making sure that he is authorised to duplicate printed material. The customer shall be exclusively liable if the execution of his order violates rights, especially third-party copyrights. The customer shall indemnify us against all third-party claims due to such violations of rights. The customer shall make a reasonable advance payment on any costs we may incur for legal action in this connection.
10. PROOFS / PRINT ORDERS
10.1 The customer shall review soft proofs and hard proofs for any typesetting errors and other errors and resubmit them to us, indicating that they are ready for printing. We do not assume any liability for errors overlooked by the customer. Corrections and changes communicated by phone must be confirmed in writing.
10.2 If, after submission of the soft proof, extensive changes, new typesetting, or other corrections of the draft submitted by the customer are required in excess of the normal scope, the incurred working time and material consumption will be billed. If the customer does not request a soft proof, the liability for typesetting errors shall be limited to grossly intentional acts. The typesetting and hard proof charges will be billed even if an order is withdrawn.
10.3 In the event of major deviations of the properties of the plastic, paper, and other material procured by us, we shall only be liable up to the amount of our own claims against our suppliers. In such a case, we shall be relieved of our liability if we transfer our claims against our suppliers to the customer.
10.4 Our liability for lightfastness, variability and deviation of the material and print colours, and the properties of rubber coating, varnish coating, waterproofing, etc. is limited to the extent that the defects of the material would have been identifiable had they been duly inspected prior to use. For colour reproduction in all printing methods, minor colour deviations among the printed copies and between the hard proof and the production print may occur and do not constitute a justified reason for complaint.
11. LEGAL NOTICE
We reserve the right to affix our company name at the back or another suitable spot on the items delivered by us. We also reserve the right to continue to use any items manufactured by order of our customers as samples or for advertising purposes.
12. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW, MISCELLANEOUS
12.1 The place of fulfilment for all obligations arising from the contractual relationship is Sulzbach-Rosenberg.
12.2 For all current and future claims arising from the business relationship with a merchant, including notes receivable and cheques, the sole jurisdiction is Nuremberg.
12.3 The contractual relationship is subject exclusively to the laws of the Federal Republic of Germany, in particular the German Civil Code (BGB) and the German Commercial Code (HGB).
12.4 Should one of these provisions prove to be ineffective, the effectiveness of the remaining provisions in our delivery and payment terms and conditions shall remain unaffected.