GENERAL TERMS AND CONDITIONS OF BUSINESS
FOR WORK AND SERVICES FROM BILDLOGISTIK.
1.1 All work and services provided by NICOSOCHA STUDIOS, Zum Ludwigstal 15, 45527 Hattingen, Germany, trading as BILDLOGISTIK (hereinafter referred to as BILDLOGISTIK), hereinafter referred to as “Services”, are subject exclusively to the following terms and conditions (GTC).
If GTC of BILDLOGISTIK are introduced into the business with the customer, they also apply to all further business relations between the customer and BILDLOGISTIK, unless otherwise agreed in writing. Terms and conditions of the customer shall only apply if and to the extent that BILDLOGISTIK expressly acknowledges them in writing. Silence on the part of BILDLOGISTIK with regard to such deviating terms and conditions shall in particular not be deemed as acceptance or consent, even in the case of future contracts.
1.2 These GTC shall only apply in relation to entrepreneurs within the meaning of § 14 BGB.
- Power characteristics
A guarantee shall only be deemed to have been assumed by BILDLOGISTIK if BILDLOGISTIK has designated a property as “guaranteed” in writing.
- Conclusion of contract, scope of services
3.1. The offers of BILDLOGISTIK are always made without obligation, unless they are expressly designated in writing as “binding”. They are calls for orders. The orderer places an order with BILDLOGISTIK for the creation and/or processing of digital photos as well as any other related services. The contract is only concluded when the order placed by the customer via the Internet or by e-mail has been confirmed by BILDLOGISTIK by e-mail. By doing so, the customer accepts these General Terms and Conditions.
3.2. All agreements, collateral agreements, assurances and amendments to the contract must be made in text form. This also applies to the waiver of the text form agreement itself. Verbal collateral agreements and/or changes/additions are void.
3.3. The customer shall inform BILDLOGISTIK in writing of any special requirements for the services of BILDLOGISTIK in due time before the conclusion of the contract.
- Time of performance, delivery, delivery dates, delay in performance
4.1. Binding performance dates or deadlines must be agreed expressly and in text form. The delivery times stated by BILDLOGISTIK are agreed upon with the proviso that they can be approx. 24 hours shorter or longer. In the absence of a corresponding agreement, BILDLOGISTIK shall make every effort to comply with non-binding or approximate (approx., about, etc.) performance dates and deadlines.
4.2. Performance periods begin at the earliest with the customer’s receipt of BILDLOGISTIK’s order confirmation, but not before all details of the execution of the order have been clarified and all other requirements to be fulfilled by the customer – in particular the shipment of the goods to be photographed – have been met. The same applies to performance dates. If the customer has requested changes to the service after the order has been placed, a new performance period begins with the confirmation of the changes by BILDLOGISTIK.
4.3. Services before the expiry of the agreed performance and delivery time are permissible. BILDLOGISTIK is entitled to partial performance. In the absence of a written agreement to the contrary, the interest in the performance of BILDLOGISTIK shall only lapse if BILDLOGISTIK fails to perform essential services or performs them with delay.
4.4. If BILDLOGISTIK is in default, the customer must first set BILDLOGISTIK a reasonable grace period for performance in writing. If this period expires without result, claims for damages due to breach of duty – irrespective of the reason – shall only exist in accordance with the provisions in Section 2. 12.
4.5. BILDLOGISTIK is not in default as long as the customer is in default with the fulfillment of obligations towards BILDLOGISTIK, including those from other contracts.
4.6. In the event of a delay in performance for which BILDLOGISTIK is responsible due to intentional or grossly negligent conduct, the customer is entitled to compensation for any damage demonstrably caused by the delay. For the rest, reference is made to Note 12.
- Delay, postponement and interruption of services
If the performance of the services is delayed due to a circumstance for which the customer is responsible, BILDLOGISTIK is entitled – unless otherwise agreed with the customer – to demand immediate payment of the agreed remuneration, or to withdraw from the contract, or to refuse performance and demand damages in lieu of the entire performance, at BILDLOGISTIK’s discretion, after setting and fruitless expiration of a 14-day grace period. The deadline must be set in writing or in text form. BILDLOGISTIK does not have to refer to the rights from this clause again. In the event of a claim for damages, BILDLOGISTIK is entitled to demand a lump-sum compensation amounting to 20% of the agreed net remuneration instead of the concrete amount of damages. The customer reserves the right to prove a different amount of damage or the non-occurrence of damage with regard to the lump-sum compensation.
6.1. The customer is obligated to immediate acceptance after the photos have been transmitted electronically to the customer, as far as BILDLOGISTIK is obligated to a work performance.
6.2. If, despite the existence of the conditions set forth in sec. 4.1 conditions mentioned the acceptance for reasons for which the customer is responsible, the acceptance shall be deemed to have taken place after the expiry of 2 days after the photos have been transmitted by BILDLOGISTIK.
- Cooperation obligations of the customer
It is the customer’s responsibility to create the conditions within his sphere to enable BILDLOGISTIK to provide the contractual services completely and in accordance with the contract. This includes sending the products to be photographed to BILDLOGISTIK free of charge. BILDLOGISTIK will not accept carriage forward shipments.
- Cost estimate and cost limit
8.1. Cost estimates shall in principle not constitute a binding confirmation of the binding remuneration to be paid for the execution, unless the remuneration owed by the customer upon execution is designated as binding.
8.2. Cost estimates may be exceeded by BILDLOGISTIK in the case of an order by up to 10% without the need for the customer’s consent. This does not apply if BILDLOGISTIK has expressly designated a specific cost amount or remuneration as binding.
8.3. The performance of additional work always requires the consent of the customer.
- Reservation of self-delivery, force majeure and other hindrances
9.1. If, for reasons for which BILDLOGISTIK is not responsible, BILDLOGISTIK does not receive deliveries or services from its sub-suppliers and subcontractors, or does not receive them properly or in a timely manner, despite proper coverage, or if events of force majeure occur, BILDLOGISTIK shall inform its customer in a timely manner. In this case, BILDLOGISTIK is entitled to postpone the performance for the duration of the impediment, or to withdraw from the contract in whole or in part due to the unfulfilled part, provided that BILDLOGISTIK has fulfilled its aforementioned duty to inform and has not assumed any procurement risk. Force majeure shall include strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks for which BILDLOGISTIK is not responsible, operational hindrances for which BILDLOGISTIK is not responsible, e.g. due to fire, water and machine damage, and all other hindrances for which BILDLOGISTIK is not responsible from an objective point of view.
9.2. If a performance and/or completion date has been bindingly agreed upon and is not met due to events according to the aforementioned sec. 9.1 the agreed date of performance and completion is exceeded, the customer shall be entitled to withdraw from the contract with respect to the unfulfilled part of the contract after a reasonable grace period set by the customer has expired without result, if the customer cannot objectively be expected to adhere to the contract any longer. Further claims of the customer, in particular claims for damages, are excluded in this case.
- Shipping and transfer of risk, insurance
10.1. Unless otherwise agreed in text form, the service will be sent in accordance with the provisions set out in the BILDLOGISTIK website. The service is sent electronically by sending a link to the e-mail address provided by the customer, where the order can be downloaded by the customer. The customer is obligated to immediately download the photos that can be called up via the link sent by BILDLOGISTIK as well as to save them by means of his own suitable storage medium.
10.2. Items required for order processing will be shipped to addresses in Germany – with the exception of items that must be shipped by freight forwarding – back to the orderer at BILDLOGISTIK’s expense. BILDLOGISTIK reserves the right to choose the transport route and the means of transport. Currently, the return shipment is carried out via the logistics service provider Hermes and is insured up to a value of goods in the amount of € 500.00 .
If shipment is delayed at the request of or through the fault of the customer, the items shall be stored at the expense and risk of the customer. In this case, the notification of readiness for shipment is equivalent to the shipment.
The risk of accidental loss or accidental deterioration shall pass to the customer upon handover of the items to be returned to the customer or to the undertakings designated to carry out the shipment, but no later than upon leaving the BILDLOGISTIK branch office or 14 days after being made available to the customer in the case of agreed collection.
If the shipment is delayed due to BILDLOGISTIK exercising its right of retention as a result of the customer’s default in payment in whole or in part, or for any other reason for which the customer is responsible, the risk shall pass to the customer no later than the date of notification of readiness for shipment.
- Notice of defects, breach of duty, warranty
11.1. Recognizable breaches of duty due to poor performance are to be reported by the customer without delay, at the latest, however, 2 days after the transfer of performance – also with regard to a part of the performance usable by the customer – hidden defects without delay, at the latest, within the time period specified in para. 11.7. warranty period in text form. Failure to give notice of defects in due time shall exclude any warranty claim of the customer.
11.2. Other breaches of duty are to be warned by the customer immediately in text form, setting an appropriate remedy period, before the assertion of further rights.
11.3. Defects for which the customer is responsible as well as unjustified complaints will be invoiced to the customer according to BILDLOGISTIK’s general rates of remuneration plus the respective statutory value added tax, insofar as they trigger activities on the part of BILDLOGISTIK.
11.4. If BILDLOGISTIK is responsible for a defect, the defect shall be remedied at BILDLOGISTIK’s discretion by free-of-charge repair or replacement delivery, whereby BILDLOGISTIK shall in principle be granted two attempts at subsequent performance.
Only technical deficiencies that could have been avoided according to the previous state of the art are considered justified defects, but not taste aspects. If the client has not given BILDLOGISTIK any explicit instructions regarding the design and/or further processing of the photographs, complaints regarding the image conception as well as the artistic-technical design are excluded. If the client wishes changes during or after the recording production, he has to bear the additional costs. BILDLOGISTIK retains the right to remuneration for work already begun.
11.5. In the event of notices of defects, payments by the customer may only be withheld to an extent that is in reasonable proportion to the material defects that have occurred.
11.6. BILDLOGISTIK’s warranty is excluded unless defects and related damages are demonstrably due to defective material or poor workmanship. Furthermore, claims for defects shall not exist in the event of only insignificant deviations from the agreed or customary quality or usability of the contractual goods or services.
11.7. In the event of breaches of duty within the scope of services, BILDLOGISTIK shall provide a warranty for a period of one year, calculated from the date of the statutory commencement of the limitation period, unless another legally binding, longer limitation period applies, unless otherwise agreed in writing. For the rest, reference is made to Note 12.
11.8. Further claims of the customer due to or in connection with defects or consequential damage caused by defects, irrespective of the reason, shall only exist in accordance with the provisions of Clause 12, unless they are claims for damages under a performance guarantee. In this case, reference is made to Clause 12.2.
11.9. The recognition of poor performance always requires text form.
11.10. A reversal of the burden of proof is not associated with the above provision.
- Exclusion and limitation of liability
12.1. BILDLOGISTIK is not liable, in particular not for claims of the customer for damages, regardless of the legal basis. This foregoing exclusion shall not apply in the following cases:
- for culpable violation of essential contractual obligations (i.e. such contractual obligations on whose fulfillment by the Supplier the Purchaser must be able to rely in any case according to the nature of the legal transaction);
- in case of injury to life, body and health;
- insofar as BILDLOGISTIK has, by way of exception, expressly assumed a guarantee for the quality of its performance or the existence of a performance outcome or a procurement risk
- in case of intent and gross negligence;
- in case of defects that BILDLOGISTIK has fraudulently concealed;
- as well as in the case of liability under the Product Liability Act.
12.2. BILDLOGISTIK’s liability is limited to the foreseeable damage typical for the contract in cases of slightly negligent violation of essential contractual obligations (see section 12.1).
12.3. A reversal of the burden of proof is not associated with the above provisions.
12.5. Any further liability is excluded.
12.6. The exclusions or limitations of liability pursuant to the above Sections 12.2 to 12.5 shall apply to the same extent in favor of BILDLOGISTIK’s executive and non-executive employees and other vicarious agents as well as subcontractors.
12.7. The above provisions do not reverse the burden of proof.
- Prices, terms of payment, plea of uncertainty
13.1. All prices are quoted in Euro plus value added tax to be borne by the customer at the statutory rate.
13.2. BILDLOGISTIK is entitled to unilaterally increase the remuneration appropriately (§ 315 BGB) in the event of an increase in material procurement costs, wage and ancillary wage costs, energy costs and other costs if there are more than four months between the conclusion of the contract and the agreed date of performance. An increase in the aforementioned sense is excluded to the extent that the cost increase in the aforementioned factors is offset by a cost reduction in other of the aforementioned factors with respect to the total cost burden for the delivery.
13.4. BILDLOGISTIK’s invoices are payable within 10 days of the invoice date without discount or other deductions.
13.5. The customer shall be in default of payment within 10 days of the invoice date even without a reminder.
13.6. Upon the occurrence of default, interest on arrears shall be charged at a rate of nine percentage points above the respective base interest rate. The date of payment is the date on which the money is received by BILDLOGISTIK or credited to the account of BILDLOGISTIK. We reserve the right to assert claims for damages in excess thereof. In all other respects, default in the fulfillment of a claim shall result in the immediate maturity of all further claims on the part of BILDLOGISTIK arising from the business relationship.
13.7. If payment terms are not complied with or if circumstances become known or recognizable which, according to BILDLOGISTIK’s due commercial discretion, give rise to justified doubts about the customer’s creditworthiness, including facts which already existed at the time of the conclusion of the contract but which were not known or should not have been known to BILDLOGISTIK, BILDLOGISTIK shall be entitled, without prejudice to further statutory rights in such cases, to stop further work on current orders or deliveries and to demand advance payments or the provision of securities acceptable to BILDLOGISTIK for outstanding deliveries and to withdraw from the contract after the unsuccessful expiry of a reasonable grace period for the provision of such securities – without prejudice to further statutory rights. The customer is obliged to compensate BILDLOGISTIK for all damages resulting from the non-execution of the contract.
13.8. If payments are deferred and these are made later than agreed, interest shall be owed for the deferral period at a rate of nine percentage points above the base interest rate applicable at the time the deferral agreement was concluded, without any notice of default being required.
13.9. The customer shall have a right of retention or set-off only with respect to counterclaims that are not disputed or have been finally determined by a court of law, unless the counterclaim is based on a breach of material contractual obligations pursuant to Section 12.1 on the part of BILDLOGISTIK. A right of retention can only be exercised by the customer if his counterclaim is based on the same contractual relationship.
- Rights of use
14.1. BILDLOGISTIK transfers the exclusive rights of use of the photos to the customer. The rights of use shall not pass to the customer until the remuneration has been paid in full.
14.2. BILDLOGISTIK is entitled to use the services on its own website and within the scope of its own company presentation and advertising. For the purpose of presenting references, BILDLOGISTIK is entitled to use the services, stating and naming the client (as well as using the client’s company name or industrial property rights), insofar as this does not conflict with individual contractual agreements.
- Place of performance, place of jurisdiction, applicable law
15.1. The place of performance for all contractual obligations is the registered office of BILDLOGISTIK. The exclusive place of jurisdiction for all disputes is – as far as legally permissible – Cologne. However, BILDLOGISTIK is also entitled to sue the customer at his general place of jurisdiction.
15.2. All legal relations between the customer and BILDLOGISTIK shall be governed exclusively by the substantive law of the Federal Republic of Germany, in particular excluding the conflict of laws and the UN Convention on Contracts for the International Sale of Goods.
- Changes to the GTC, Final Provisions, Notice
16.1. The customer will be notified of any changes to these terms and conditions in text form. It can also be viewed on the Internet at www.BILDLOGISTIK.de. The GTC shall be deemed to have been approved by the customer if the customer does not raise an objection in text form in due time. BILDLOGISTIK must specifically point out this legal consequence with the notification of change. The customer must send the objection to BILDLOGISTIK within six weeks after receipt of the change notification.
16.2. In the event of rejection of the opening of insolvency proceedings against the assets of the customer for lack of assets or the customer’s cessation of payments not based on rights of retention or other rights, BILDLOGISTIK shall be entitled to withdraw from the contract at any time or to make performance dependent on the prior fulfillment of the payment obligation. If the service has already been rendered, the invoice amount shall be due immediately in the aforementioned cases.
16.3 The customer is not entitled to transfer his contractual rights without the consent of BILDLOGISTIK. § 354a HGB remains unaffected.
16.4. Should any present or future provision of the concluded contract be or become invalid/void or unenforceable in whole or in part for reasons other than §§ 305-310 BGB, this shall not affect the validity of the remaining provisions of this contract.
The same shall apply if a gap requiring supplementation arises after conclusion of the contract. The parties shall replace the invalid/void/unenforceable provision or gap requiring filling by a valid provision which in its legal and economic content takes into account the invalid/void/unenforceable provision and the overall content of the contract. The provision of § 139 BGB (partial invalidity) is expressly excluded.