General Terms of Sale and Delivery for the ePoster Web Shop
1. Scope of application
1.1 The following general terms of sale and delivery are only intended to apply to entrepreneurs/companies. They do not apply to consumers.
Entrepreneurs are natural persons or legal entities or partnerships with legal capacity who act in the execution of a legal transaction in the course of their commercial or independent commercial activity.
1.2 These terms of sale and delivery apply to orders of ePosters and accessories for the ePoster (stand, wall mount, etc.), which are offered at http://e-poster.de/ (hereinafter "online shop").
These terms of sale and delivery apply exclusively between Neo Advertising GmbH (hereinafter referred to as "Seller") and the contracting party (hereinafter referred to as "Buyer"). Terms of purchase or other terms and conditions of the Buyer are hereby rejected. They will not be applied. This also applies if and insofar as the scope of the terms of purchase or other terms and conditions of the Buyer goes beyond the scope of these terms of sale and delivery.
1.3 Should one of the provisions of these terms of sale and delivery be or become ineffective, this does not affect the validity of the rest of the contract. The legal regulation applies in its place. In no event will the relevant provision in these terms of sale and delivery be replaced by the Buyer's terms and conditions. The same applies to a gap in these terms of sale and delivery.
1.4 The Seller is entitled to change the terms of sale and delivery with effect for the entire future business relationship with the Buyer subsequent to a relevant notification. The changes are considered approved if the Buyer has not submitted a written objection within six weeks of notification of the changes. The Seller will specifically inform the Buyer of this consequence when announcing the changes.
1.5 The Buyer can retrieve the current terms of sale and delivery on the website of the Seller at shop.neo-live.com at any time.
2. Acquisition of ePosters and accessories
2.1 The Buyer can purchase ePoster and accessories in the online shop via a purchase contract.
2.2 The ePoster can only be operated with the neolive software. The neolive software will be available to the Buyer without charge subsequent to registration on the website as the Free version. The Buyer will also have the option of purchasing software expansions of the neolive software on this website. The use and purchase of the neolive software is subject to the online GTCs for the software. These are available at www.neo-live.com.
3. Contract conclusion
3.1 The presentation of goods in the Seller's online shop contains only an invitation to submit an offer. By clicking on the "order for payment" button the Buyer is initiating a binding offer.
3.2 Upon receipt of this offer, the Seller will automatically confirm the receipt (acknowledgment of receipt). This confirmation of receipt does not yet constitute acceptance of the Buyer's offer. A contract between the Seller and the Buyer only comes into force once the Seller confirms acceptance of the order by email or if the goods – without prior acceptance – are shipped to the Buyer.
The prices quoted in the online shop are subject to the statutory VAT valid at the time of contract conclusion as well as the respective shipping costs, insofar as these are incurred. The amount of the shipping costs is determined by the place to which the goods are to be shipped and the type of shipping desired by the Buyer. The cost of shipping will be separately indicated to the Buyer.
5. Terms of payment, offsetting, right of retention
5.1 Payment of the purchase price is made either by PayPal, MasterCard, VisaCard or by Sofortüberweisung (instant transfer).
5.2 Payment of the purchase price is due upon receipt of the Seller's order confirmation by the Buyer or upon receipt of the goods by the Buyer, whichever comes first.
5.3 Offsetting by the Buyer with counterclaims as well as a right of retention are excluded, unless it concerns uncontested or legally established claims of the Buyer. This also applies to the assertion of claims for defects.
6. Delivery date, delivery
6.1 Delivery dates and time periods are approximate. The delivery dates are deemed to have been met with notification of readiness for shipment.
6.2 The Seller is entitled to partial deliveries, insofar as these are not below the reasonable minimum.
6.3 The Buyer must check and acknowledge the delivery note. Any objections must be reported to the Seller immediately in writing. Otherwise, the acknowledged delivery quantity will be considered to be accepted.
6.4 Delivery delays due to operational disruptions, official measures or force majeure will lead to a reasonable extension of the delivery time. Force majeure shall also apply to labour dispute actions, including strikes and lawful lockouts in the Seller's operation or the Seller's suppliers. Claims of the Buyer for damages are excluded in this case within the limits of section 11 (liability).
6.5 In the event of a delay in delivery, the Buyer may withdraw from the contract after setting a reasonable period of grace if the service is not performed within the grace period. Further claims in the event of default in delivery, in particular claims for damages, are excluded pursuant to the provisions in section 11 (liability).
6.6 Upon handover of the goods by the Seller to the forwarder, carrier or collector, at the latest when leaving the factory or storage, the risk of accidental loss and accidental destruction passes to the Buyer. If the handover or shipping is delayed for reasons for which the Buyer is responsible, the risk shall pass to the Buyer from the day of the original handover. The Seller is willing, at the Buyer's request, to acquire appropriate insurance at the Buyer's expense. In the absence of a special agreement, the shipping route and means of transport are at the Seller's discretion, whereby the Seller assumes no liability in this respect.
7. Defects (material and legal defects)
7.1 The obligation of the Seller in the event of defects is limited to repair at the Seller's premises or to replacement, at the Seller's discretion. The Seller is entitled to undertake a reasonable number of attempts to remedy the defect or to make substitute deliveries, but at least three of such per defect.
7.2 If the remedy of the defect or the replacement delivery fails, the Buyer – without prejudice to any claims for damages pursuant to section 11 – shall have the right, at its discretion, to cancel the contract or reduce the remuneration. This right is limited to the relevant delivery when such limitation is not unreasonable for the Buyer due to the nature of the item. Claims for damages against the Seller shall be determined pursuant to section 11 below.
7.3 The Buyer must inspect ePosters the Seller has delivered for defects immediately upon receipt and to notify the Seller of any defects without delay. Hidden defects must be reported to the Seller immediately after their discovery.
7.4 Any liability for defects on the Seller's part expires if the repair or other work has been carried out on the defective products without the Seller's permission. For remedial work or replacement deliveries, the same liability for defects exists as for the original delivery.
7.5 Claims for defects are subject to a period of limitation of one year from the date on which the ePosters are made available to the Buyer. This does not apply if longer periods unavoidably apply pursuant to §438 para. 1 no. 2 (building structures and components for structures), § 479 para. 1 (right of recourse) and § 634 a para. 1 no. 2 (construction defects) BGB or pursuant to the Product Liability Act, if there is a wilful or grossly negligent breach of duty by the Seller, malicious concealment of a defect, and in cases of injury to life, limb or health.
7.6 Dimensions, performance descriptions and other information on the nature of the delivery item are specifications. They are not an assurance of properties that are the subject of a guarantee. Any public advertising statements/product information from third parties or from the Seller are not part of the contractual product specification, unless the Seller makes a corresponding agreement with the Buyer.
8. Performance obligation, impossibility and non-performance
8.1 The Seller's obligation to deliver and the delivery period are subject to the reservation of proper, complete and timely delivery on the part of its suppliers.
The Seller relies on deliveries from subcontractors for delivering the products. If, despite conclusion of a congruent hedging transaction, the goods required to fulfil its delivery obligations to the Buyer are not delivered or not delivered on time to the Seller by the suppliers, without the Seller being responsible for improper or untimely delivery, the Seller may withdraw from the contract with the Buyer. Liability of the Seller for damages is excluded. The Seller must notify the Buyer of improper or untimely delivery by its suppliers.
8.2 If it is impossible for the Seller to undertake the entire performance before the transfer of risk due to a circumstance for which the Seller is responsible, the Buyer can withdraw from the contract.
In the case of partial impossibility or partial inability, the above provision applies only to the relevant part. In this case, however, the Buyer can withdraw from the overall contract if it can prove a legitimate interest in refusal of the partial delivery.
Further claims of the Buyer, in particular claims for damages, are excluded pursuant to the provisions in section 11 (liability).
8.3 If the impossibility occurs during the default of acceptance or through the fault of the Buyer, its obligation to perform remains.
9. Third-party rights
Insofar as nothing else has been agreed, the Seller assumes no liability that the goods it has supplied violate any rights of third parties. The Buyer is obliged to notify the Seller immediately if it is reprimanded due to such infringements. This limitation of liability does not apply if the Seller has acted intentionally or through gross negligence or has negligently breached essential contractual obligations in connection with the property rights of third parties. In these cases, the liability of the Seller shall be determined pursuant to the provision in section 11.
9.2 If the supplied ePosters have been created according to designs or instructions of the Buyer, the Buyer shall indemnify the Seller from all claims of third parties that are asserted as a result of infringements.
9.3 The claims of the Buyer against the Seller because of an infringement of third-party rights due to the ePoster which the Seller is responsible for, are limited to the Buyer having the option of demanding that the ePoster be changed by the Seller such that rights are no longer being infringed, at the Seller's discretion. Any claims for damages based on slight negligence on the part of the Seller pursuant to this section shall have a period of limitation pursuant to the provision in section 7.5.
10 Retention of title
10.1 All ePosters and accessories for ePosters (hereinafter also referred to as "reserved goods") remain the Seller's property until full payment of all claims of the Seller arising from the business relationship with the Buyer at the time of the respective contract conclusion. In addition, the reserved goods remain its property until full payment of the Seller's future claims against the Buyer.
10.2 The Buyer must bear the risk of loss, wear or damage to the purchased item. During the period of retention of title, the object of purchase at the replacement value, including any transport risk, shall be insured against comprehensive insurance and liability, with the proviso that the rights under the insurance are due to the Seller. All claims of the Buyer from the insurance contract are hereby assigned to the Seller. In the case of total loss, the insurance benefits are to be used to repay the Seller's remaining claims. A surplus will be due to the Buyer.
10.3 Preparation, processing, or modification of the reserved goods within the meaning of § 950 BGB (German Civil Code) is free of charge for the Seller, i.e. legally it is the manufacturer of new items within the meaning of § 950 BGB. The Buyer is obliged to store the item resulting from the processing free of charge.
10.4 Pledges or assignments of reserved goods to third parties and the assignment or pledging of entitlements to the reserved goods by the Buyer are excluded.
10.5 The Buyer is revocably entitled to resell the delivered object of purchase or the object resulting from the processing in the context of its ordinary business operation. The Buyer hereby assigns to the Seller all claims arising from the resale and the business relationship with its customers in connection with the resale, including any current account balance claims with all ancillary rights. The Seller hereby accepts this assignment. The Buyer is entitled and obliged to collect the claims assigned to the Seller insofar as the Seller has not revoked this authorisation. The collection authorisation expires without explicit revocation if the Buyer ceases its payments or is delayed with respect to them. Upon expiry of the collection authorisation, the Buyer must immediately notify the Seller in writing as to whom it has sold the object of purchase and which claims it is entitled to from the sale. The funds received by the Buyer after expiry of the claims collection authorisation are to be received in trust up to the amount of all secured claims and immediately distributed to the Seller.
10.6 The Buyer shall immediately notify the Seller of any impairment of the rights to the object of purchase owned by the Seller. The Buyer shall bear the costs of all action taken to release the item transferred to the Seller from third-party rights.
10.7 If the value of the claim assigned to the Seller exceeds its claim against the Buyer by more than 10%, the Seller is obliged to retransfer it on request of the Buyer.
10.8 In the event of default of payment by the Buyer, the reserved goods must be returned to the Seller immediately upon request without the need for a declaration of rescission by the Seller. The same applies to a significant deterioration in the Buyer's financial situation. The request for return and the return are not considered to be withdrawal from the contract.
11.1 The liability of Seller under contract and law is excluded, unless otherwise agreed below.
11.2 The exclusion of liability of the Seller pursuant to 11.1 does not apply
- for damages caused by the Seller intentionally or through gross negligence;
- if and insofar as the Seller is liable according to the mandatory provisions of the Product Liability Act;
- if and insofar as the Seller has provided a quality or durability guarantee and damages have arisen from the breach of the guarantee;
- in cases of culpable injury to life, body and health.
11.3 In cases of slight and simple negligence of the Seller, it will be liable – insofar as it is not already liable for damages pursuant to section 11.2 – only for violation of essential contractual obligations. The liability of the Seller is limited to the contractually typical damage foreseeable for the Seller upon concluding the contract or committing the breach of duty. Essential contractual obligations are those which must be fulfiled for the contract to be properly executed, and the compliance with which the Buyer ordinarily relies upon.
Liability of the Seller is excluded for damages that are exclusively attributable to the Buyer's area of risk. It is also excluded to the extent that it is based on the Buyer's or its vicarious agents' non-compliance with instructions, for example, improper storage of the products, improper use or mixing with products from other suppliers, making changes to the products, replacing parts or using consumables that do not conform to the original specification.
11.4 Claims for damages of the Buyer due to simple or slight negligence of the Seller pursuant to sections 11.2 and 11.3 above are in any event excluded if they are not asserted in court within three months after the rejection of the claims with a corresponding notice by the Seller or its insurer.
11.5 Any claims for damages based on slight negligence of the Seller pursuant to the preceding sections 11.2 and 11.3 are subject to a period of limitation pursuant to the provision in section 7.5. By way of derogation, the statutory provisions apply at the beginning of the period of limitation to claims that are not claims for defects. According to the statutory provisions, the period of limitation begins, unless otherwise specified, at the end of the year in which the claim has arisen and the creditor gained knowledge of the circumstances engendering the claim and of the person of the debtor or should have gained knowledge of such without gross negligence.
11.6 The above exclusions and limitations of liability also apply to the liability of the Seller for the bodies, employees and vicarious agents as well as to the personal liability of the bodies, employees and vicarious agents of the Seller.
12. Compliance with German regulations
The products of the Seller comply with the legal regulations in Germany. If the Buyer wishes to sell or use the products outside of Germany, the Buyer must ensure that the products comply with the requirements of foreign law.
13. Prohibition of assignment
The assignment of the Buyer's claims against the Seller to third parties may only be undertaken with the Seller's prior written consent.
14. Place of performance, place of jurisdiction, applicable law
14.1 The place of performance for the payment and delivery of goods is Hamburg.
14.2 Legal disputes are conducted exclusively in the ordinary courts. With Buyers who are merchants, legal entities under public law or special funds under public law, Hamburg is agreed as an additional place of jurisdiction. Complaints against the Seller can only be undertaken in Hamburg.
14.3 German substantive law applies exclusively, excluding the UN Sales Convention (CISG).
Status: Hamburg, July 2018