General Terms and Conditions FLYERALARM GmbH
The General Terms and Conditions of FLYERALARM GmbH (hereinafter: "GTC") consist of General Terms and Conditions (hereinafter: "General Terms") and Special Terms and Conditions (hereinafter: "Special Terms"). The Special Terms and Conditions apply to the products and services listed below and take precedence over the General Terms and Conditions. The General Terms and Conditions shall apply insofar as no provisions have been made in the Special Terms and Conditions. Insofar as only partial provisions are made in the Special Terms and Conditions, the General Terms and Conditions shall apply additionally in this respect.
Insofar as the masculine form is used exclusively in these General Terms and Conditions, this is done solely for reasons of simplification. The respective wording refers equally to all genders.
Special Terms an d Conditions for printed products & promotional items
General Terms
§ 1 Scope of application, subject matter of the contract, language
(1) All products and services offered by FLYERALARM GmbH (hereinafter: "FLYERALARM" or "we") to customers (hereinafter: "Customer") are subject to these General Terms and Conditions. Value vouchers are excluded, for which separate voucher conditions for value vouchers apply.
(2) With regard to the offer details of a product or service, reference is made to the product description of the respective offer page or to an offer submitted to the customer.
(3) These GTC apply exclusively to the conclusion of contracts for products and services (including the options that can be added during order processing) under the following domains (hereinafter: "Shop"):
as well as in FLYERALARM stores and for individual inquiries (refer to the Special Terms and Conditions for individual inquiries are referred to).
(4) The customer's terms and conditions shall not apply at any time, even if we do not separately object to their validity.
(5) Terms and conditions of third parties to which we refer from these GTC or in the context of order processing shall apply in addition to our GTC, unless we have made provisions in our GTC. In the event of contradictions, our GTC shall take precedence. If, in exceptional cases, the terms and conditions of third parties must be observed first, we will explicitly point this out.
(6) Contracts with customers shall be concluded exclusively in German .
§ 2 Conclusion of contract, text of contract, principal, term of contract in the case of continuing obligations, subsequent amendments
(1) The conclusion of the contract depends on whether the contract is concluded by store (cf. para. 2) or by inquiry form, e-mail or individual order (cf. para. 3).
(2) Conclusion of contract in the store
a. Our offers in the store are subject to change, non-binding and represent only an invitation to submit offers.
b. The customer adds the desired products to the shopping cart. After logging into the customer account, which requires the prior creation of a customer account, or if the store offers the option of ordering without a customer account (guest order) after entering all address and payment data, and acceptance of these terms and conditions, the customer makes a binding offer to purchase the relevant products or to book the selected service via the button "Buy now" or the button with appropriate wording on the order completion page.
c. The customer can correct input errors at any time before submitting the contractual declaration by changing or removing products in the shopping cart or by going back the corresponding steps via the browser.
d. In case of the payment method "prepayment", we will send the customer an e-mail confirmation of receipt of the offer immediately after receipt of his order, which immediately constitutes an acceptance of the offer on the part of FLYERALARM. For all other payment methods, we will send the customer an e-mail confirmation of receipt of the offer immediately after confirmation of the payment by the payment service provider or a possible successful credit check, which immediately constitutes an acceptance of the offer by FLYERALARM.
(3) Conclusion of contract via inquiry form, e-mail or individual order
a. After the customer has sent us an inquiry about a product or service via an inquiry form on our website, by telephone or by e-mail, the customer will receive an offer from us by e-mail. This offer, which also contains a reference to these GTC, also constitutes the offer in the legal sense. The period of validity can be taken from the respective offer. If no special provision has been made in the respective offer, the offer has a validity of 7 working days beginning with the date of the offer.
b. The customer accepts the offer by declaring this to us by e-mail within the offer period.
c. We will send the customer an e-mail confirmation of receipt of his acceptance of the contract immediately after receipt.
(4) Conclusion of Contract Print Data-, Layout- & Design- Service
a. Based on the customer's request through the form provided in our store, by e-mail, by phone or in our store, we will prepare an offer, which we will place in the customer's account, which requires the prior creation of a customer account. We inform the customer about this immediately by e-mail. The offer is subject to change, non-binding and is only an invitation to submit the offer.
b. After logging into his customer account, the customer, after clicking on the button "Accept" there, gets to his shopping cart in our shop. The customer can add more products to the shopping cart. After selecting the payment method and acceptance of these terms and conditions, he makes a binding offer to book the selected service and to purchase the additional products in the shopping cart via the button "Buy now" or the button with the appropriate wording.
c. In all other respects, paragraph 2 c. and d. shall apply.
(5) We store the text of the contract and send the customer the order data by e-mail. If a customer account exists, the customer can view past orders, but without the GTC valid at the time of order, in his customer account.
(6) For customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code), the following shall apply additionally:
a. In the case of orders with delivery to third parties, the Purchaser shall be deemed to be the principal. If the delivery is made to third parties for their benefit or if the recipient of the delivery is otherwise enriched by the taking of possession and further use of the delivery, the Purchaser and the recipient of the delivery shall be jointly deemed to be the principal. By placing such an order, the Purchaser implicitly assures that the consent of the recipient has been obtained for this.
b. In the case of orders for the account of third parties, irrespective of whether the Purchaser is acting in his own name or in the name of a third party, the Purchaser and the invoice recipient shall be deemed to be joint customers. A subsequent amendment of the invoice after invoicing has already been carried out at the request of the Purchaser to another invoice recipient shall mean the tacit acceptance of the debt of this invoice recipient. By placing such an order, the Purchaser tacitly assures that the agreement of the invoice recipient has been obtained.
(7) Subsequent changes to the order, i.e. changes made by the customer after acceptance of the order, shall only be made on the basis of a separate agreement between FLYERALARM and the customer, in which the parties shall also agree on the costs.
(8) The conclusion of the contract between FLYERALARM and the customer shall be subject to conflicting national or international regulations such as country-specific and personal embargos etc.. In the event that the acceptance or execution of an order constitutes a violation of national or international regulations, FLYERALARM shall not accept or shall not execute the order. Any costs incurred by FLYERALARM due to a violation of the order against national or international regulations (this also includes legal costs) shall be borne by the customer. We are not obligated to reverse payments already made by the customer, should this violate legal requirements. Any claims for damages on the part of the customer due to a rejection or non-execution of the order by FLYERALARM within the scope of the embargo or sanctions list check are excluded. Due to the verification of orders on the basis of embargo or sanction lists, delays in the provision of services on the part of FLYERALARM may occur.
§ 3 Prices and payment
Price details -
a. Unless otherwise stated in the order or on the respective product page, our prices include packaging, shipping to one delivery address (with the exception of Saturday delivery) and the statutory sales tax, but not shipping to multiple delivery addresses. Customs duties and similar charges shall be borne by the customer.
b. The following applies to flyeralarm-mailings.com : Unless otherwise stated in the order or on the respective product page and depending on the order, our prices include the production of the advertising mailings, packaging, packaging and postal delivery, delivery to the agreed households, as well as the statutory sales tax. Customs duties and similar charges shall be borne by the customer.
(2) Payment methods - The payment methods available for the respective products/services of the different websites of FLYERALARM depend on the payment methods listed in the respective shops or offers.
a. As far as offered in each case in the individual shops as a payment method, a payment by prepayment, giropay, instant bank transfer, bank transfer (SEPA transfer), direct debit (SEPA Direct Debit) credit card (Mastercard, Visa, American Express), PayPal, direct debit or by purchase on account possible.
b. The use of individual payment methods listed under point a) in the individual shops may be subject to further requirements (e.g. the customer's status as a consumer or a positive credit check).
c. For the processing of the payment, it is sometimes necessary that customers provide personal data, which we pass on to our third-party providers for the processing of the payment. Further information on this can be found in our privacy policy.
d. The payment recipient to whom the payments are to be made depends on the payment method selected by the customer in the respective shop.
With the "purchase on account" under
www.flyeralarm.com/deand www.wandmagie.de we work together with Ratepay GmbH, Ritterstraße 12-14, 10969 Berlin (hereinafter "Ratepay"). In these cases, the General Terms and Conditions and the data protection notice for Ratepay payment methods also apply and payments with discharging effect can only be made directly to Ratepay GmbH. If an effective purchase contract is concluded between us and our customers when using the purchase on account payment method, we assign our payment claim to Ratepay GmbH.
With the "purchase on account" under
www.flyeralarm.digital, www.flyeralarm-mailings.com and flyeralarm-exposystems.com we cooperate with Klarna Bank AB (publ), Sveavägen 46, 111 34 Stockholm, Sweden (hereinafter "Klarna"). In this case, the General Terms and Conditions of Klarna shall also apply. In this case, payments with discharging effect can only be made directly to Klarna Bank AB (publ). The payment method "purchase on account" via Klarna is only available to consumers. The shop charges a fee of 0 euros per order for purchase on account via Klarna.
With the payment method "instant bank transfer" under
www.flyeralarm.digital we cooperate with Klarna Bank AB (publ), Sveavägen 46, 111 34 Stockholm, Sweden (hereinafter "Klarna"). In this case, the General Terms and Conditions of Klarna shall also apply. In this case, payments with discharging effect can only be made directly to Klarna Bank AB (publ).
With the payment method “direct debit” under
www.flyeralarm.com/de we work together with Ratepay GmbH, Ritterstraße 12-14, 10969 Berlin (hereinafter "Ratepay"). In these cases, the General Terms and Conditions and the data protection notice for Ratepay payment methods also apply and payments can only be made directly to Ratepay GmbH with discharging effect. If an effective purchase contract is concluded between us and our customers when using the direct debit payment method, we assign our payment claim to Ratepay GmbH. With this payment method, the invoice amount is usually collected from the bank account specified by the customer within three bank working days. Ratepay will inform the customer of the impending collection by e-mail at least one day before the direct debit is due. It is no longer possible to change the billing address after the order has been placed. The minimum order value for this payment method is €5.00 gross. Entrepreneurs (§ 14 BGB – German Civil Code) can process orders up to a maximum of € 10,000.00 gross, consumers (§ 13 BGB – German Civil Code) can process orders up to a maximum of € 5,000.00 gross via this payment method.
Otherwise, payments with discharging effect may only be made directly to FLYERALARM or to a bank account specified by FLYERALARM.
e. Within the scope of individual orders, the customer shall receive an invoice from FLYERALARM, whereupon payment with discharging effect can only be made directly to the bank account specified by FLYERALARM within the scope of the invoice. In the case of individual orders, we reserve the right to demand a down payment of the order from the customer in an amount to be determined in the individual case in the form of advance payment.
f. In the case of payment by credit card, the debit of the credit card account of the customer takes place with the submission of the offer by the customer.
(3) Sales personnel and technical staff are not authorized to collect cash; except for amounts up to EUR 2,000.00 against delivery of a cash sales receipt.
(4) Due date - The payment deadline depends on the selected payment method and is communicated to the customer within the framework of the selected payment method.
(5) Electronic Invoice - The customer agrees to an invoice sent electronically to the e-mail address provided by the customer during the order process.
§ 4 Contractual right of withdrawal for FLYERALARM
The production of an order may be dependent on the approval of third parties (e.g. our suppliers or brand owners). If this is the case within the scope of the products offered by us, customers will find a corresponding note on the product page. We reserve a special right of withdrawal from the contract for cases in which the release of third parties is not granted.
§ 5 Cancellations
(1) Cancellations of orders are only possible in the status "Order placed", "Data uploaded", "Data received", "Incorrect data", "Data check OK", "New data coming", "Reminder incorrect data", "Data missing", "Reminder data missing", "Reminder data missing CD", "Print approval granted", "Print approval missing", "Reminder print approval missing", "Prepayment paid" and "Reminder prepayment unpaid". Cancellations in a later status are excluded.
(2) Individual items in the shopping cart cannot be canceled. The shopping cart can only be canceled as a whole. If only one item in the shopping cart is in a later status than listed in paragraph 1, cancellation is no longer possible, even if another item is still in an earlier status.
(3) Cancellations can be requested by the customer himself and exclusively via his customer account, except for orders via flyeralarm-mailings.com.
(4) The following special regulations apply with regard to the cancellation of orders via flyeralarm-mailings.com :
a) The following applies to the order "Production and transport": Cancellations of orders are only possible in the status "Order incomplete", "Data missing", "Data received" as well as "Data incorrect"". Cancellations in a later status are excluded.
b) The following applies to carriage with the customer's own print products: Cancellations of orders are only possible in the status "Print products pending" and "Print product received". Cancellations in a later status are excluded.
c) Cancellations can be requested by the customer himself via his customer account. In addition, cancellation by mail / telephone in the form of partial cancellations is possible in individual cases. However, this option is dependent on various options of the respective individual order.
(5) The following special regulations regarding the cancellation of orders via flyeralarm-exposystems.com :
Free cancellations of orders are possible exclusively within 24 hours after receipt of the order confirmation (via e-mail). After that, depending on the production status, cancellations are possible with payment of a pro rata amount of the order value (with at least 50% of the order value due).
(6) We shall be entitled to cancel orders if the customer has not fulfilled its obligations to cooperate (e.g. upload of print data) 10 days after conclusion of the contract and after two requests by us. The same shall apply in the event of the upload of faulty print data; if faulty print data is uploaded several times, the order shall be cancelled no later than 30 days after conclusion of the contract.
§ 6 Continuing obligations
(1) If a product or service provided by FLYERALARM is a continuing obligation, the respective Special Terms and Conditions shall contain a corresponding reference.
(2) Contractual term for continuing obligations
a. The contract is automatically extended by the agreed contract period if it is not terminated before the end of the agreed contract period with a notice period of 14 days, unless a longer notice period is communicated for individual products, or - if available - the customer deactivates the automatic extension in his customer account.
b. The termination must be in text form.
c. For customers who are consumers within the meaning of § 13 BGB (German Civil Code),
the following also applies:
- After the initial contract extension, the customer has the option of terminating the contract at any time with 30 days' notice for cause or for cause extraordinarily.
- consumers can additionally use the cancellation button of the respective store.
§ 7 Right of withdrawal
The cancellation policy and information on the exclusion of the right of cancellation can be found here.
§ 8 Order data, data transmission, data carriers, intermediate products
(1) The data shall be transmitted to us in the file formats specified by us. We cannot guarantee the customer error-free performance on our part for deviating file formats, unless this format has been approved by us in writing. The customer is fully liable for the correctness of this data, even if there are data transmission or data carrier errors, but we are not responsible for these. FLYERALARM is not obliged to check the data.
(2) In the case of data transmissions, the customer shall use state-of-the-art computer virus protection programs prior to transmission. Data backup is the sole responsibility of the customer. We are entitled to make copies of the data.
(3) Products to which the customer is entitled, in particular data and data carriers, shall only be archived by us beyond the time of handover of the end product to the customer or its vicarious agents by express agreement and against special remuneration. If the aforementioned items are to be insured, the customer must arrange for this himself in the absence of an agreement. Data on CD/DVD as well as other order documents will not be returned.
(4) We shall be entitled, but not obliged, to carry out necessary preparatory work ourselves, in particular on the data supplied or transmitted by the customer, without consulting the customer, if this is in the customer's economic interest or contributes to compliance with the completion date of the order. If the customer's data does not correspond to our specifications and if errors occur in the final product as a result of a corresponding adaptation of the data, these shall not be at our expense. The customer expressly declares that this work is done at his own risk. A complaint is consequently excluded. Such work will be charged according to their respective time expenditure.
(5) FLYERALARM shall not be obliged to surrender any intermediate products such as data, lithos or printing plates created for the production of the final product owed. Deviating agreements are possible and must be agreed in writing.
§ 9 Delivery, dispatch, delivery time, partial deliveries
(1) Delivery shall be made exclusively within Germany.
(2) Unless expressly agreed otherwise, we shall determine the appropriate mode of shipment and the transport company at our reasonable discretion.
(3) The relevant period for the determination of the delivery time refers in principle to working days (Monday - Friday, with the exception of public holidays in all German federal states - including those that do not apply in the entire territory of the Federal Republic of Germany).
For deliveries to the German islands, the delivery time is extended by 1-3 working days.
(4) The period relevant for the determination of the delivery time shall commence
a) in the case of contracts for the manufacture and delivery of products, one day after receipt of printable data or approval for printing within the respective deadlines communicated in the context of the product configuration and - depending on the agreed method of payment - complete payment of the products (including VAT); in the case of payment in advance, the date of receipt of payment on the bank account specified by FLYERALARM shall be decisive.
b) in the case of contracts for the provision of services, upon conclusion of the contract, fulfillment of the obligations to cooperate specified within the scope of the selected service, and - depending on the agreed method of payment - full payment of the agreed remuneration (including VAT); in the case of prepayment, the date of receipt of payment on the bank account specified by FLYERALARM shall be decisive.
(5) If the customer does not fulfill his obligations to cooperate, does not do so in time or does not do so in the agreed manner, FLYERALARM's performance of the service shall be postponed. Due to random checks of the Customer's layouts by us for violations of applicable law or of these GTC, delivery times may also be extended. FLYERALARM's performance shall also be postponed if FLYERALARM becomes aware in an individual case that the layouts submitted by the customer may constitute a violation of clause 18 (4) of these GTC and must first be checked internally before delivery.
(6) We shall be entitled to make partial deliveries of separately usable products included in an order, whereby we shall bear the additional shipping costs caused thereby.
§ 10 Force majeure
(1) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and if the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to us.
(2) If the impediment lasts longer than one month, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with respect to the part not yet fulfilled. If the delivery time is extended or if we are released from our obligation, the customer may not derive any claims for damages from this. We may only invoke the aforementioned circumstances if we notify the customer immediately.
(3) The above provisions for force majeure shall also apply if the impossibility of delivery or delays in delivery have been caused by a pandemic or epidemic or by its effects, e.g. by officially ordered business closures or quarantine measures or by hygiene measures to combat the pandemic impeding the operating processes.
§ 11 Transfer of risk and place of performance for customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code)
(1) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or we have assumed other services. If shipment or handover is delayed at the customer's request or as a result of circumstances caused by the customer, the risk shall pass to the customer upon notification that the goods are ready for shipment. Storage costs after transfer of risk shall be borne by the customer. The following applies to orders placed via flyeralarm-mailings.com: In the case of storage by us, the storage costs will be determined after individual consultation with the customer. Otherwise, the storage costs for storage by us amount to 1% of the invoice amount of the delivery items to be stored per expired week. The assertion as well as the proof of further or lower storage costs remain reserved.
(2) The place of performance for all obligations arising from the contractual relationship shall be Würzburg.
§ 12 Unauthorized refusal to accept products
If the acceptance of products is refused without justification, we shall charge a lump sum for damages in the amount of EUR 40.00. No value added tax shall apply to this claim for damages (§ 249 II 2 BGB – German Civil Code). However, the customer has the possibility to prove a lower damage, which will then be taken as a basis. We also have the possibility to prove a higher damage, which will then be taken as a basis. The amount owed under the contract shall be invoiced irrespective of this.
§ 13 Retention of title to movable property
(1) To secure the purchase price claim against our customers, FLYERALARM retains title to the products until the purchase price has been paid in full.
(2) If the customer is in default with the payment of the purchase price, FLYERALARM has the right to withdraw from the purchase contract and to demand from the customer the surrender of the reserved goods.
(3) The customer is obliged to treat the reserved goods with care. If the reserved goods are seized by third parties, the customer is obliged to point out our ownership and to inform FLYERALARM immediately in writing about the seizure.
(4) For customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code):
a. The customer is entitled to resell the reserved goods in the ordinary course of business. In the event of resale, the customer hereby assigns the resulting claims against the purchaser to secure the purchase price claim.
b. The customer is entitled to process the reserved goods in the ordinary course of business and to sell the new item in the ordinary course of business. If the customer processes the reserved goods, the processing shall be carried out in the name and for the account of FLYERALARM as manufacturer. We shall acquire direct ownership of the new item. If the processing is carried out from materials of several owners, we shall acquire a co-ownership share in the new item corresponding to the value of the reserved goods. If FLYERALARM acquires ownership or a co-ownership share in the new item, FLYERALARM shall transfer its ownership or co-ownership share in the new item to the customer under the condition precedent of full payment of the purchase price.
If the goods subject to retention of title are combined or mixed with other items of the customer and if the customer's item is to be regarded as the main item, the customer shall transfer to FLYERALARM a co-ownership share in the main item corresponding to the value of the goods subject to retention of title under the condition precedent of full payment of the purchase price.
If the customer sells the new item or the item created by combining or mixing, the customer hereby assigns to FLYERALARM the claim to which it is entitled against the purchaser of this item as security for the purchase price claim. In the event that FLYERALARM has acquired a co-ownership share in this item, the customer shall assign the claim to FLYERALARM proportionately to the value of the co-ownership share.
c. We authorize the customer to collect the claims assigned to us in his own name and for the account of FLYERALARM.
§ 14 Defects of quality and title
(1) For customers who are consumers within the meaning of § 13 BGB (German Civil Code):
a. If the delivered product or service has a material defect, the customer may first demand that we remedy the defect or deliver defect-free products or services. Should one or both types of this subsequent performance be impossible or disproportionate, we shall be entitled to refuse it. We may refuse subsequent performance as long as the customer does not fulfill his payment obligations towards us to an extent corresponding to the defect-free part of the performance.
b. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs; the bearing of costs shall be excluded to the extent that additional costs are incurred due to the transfer of the item to a place other than the place of performance.
c. If the supplementary performance according to paragraph a. fails or is unreasonable for the customer or if we refuse the supplementary performance, the customer shall be entitled in each case in accordance with the applicable law to withdraw from the contract, to reduce the purchase price or to claim damages or reimbursement of its futile expenses. Further claims of the customer for whatever legal reason are excluded or limited in accordance with § 15.
d. The warranty period is two years from delivery; if acceptance is required, from acceptance.
e. None of the above clauses is intended to change the statutory or judicial allocation of the burden of proof.
(2) For customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code):
a. The customer shall in any case immediately check the contractual conformity of the products or services. The risk of any defects shall pass to the customer upon the declaration of readiness for printing/declaration of readiness for production, unless these are defects which only arose or could only be detected in the production process following the declaration of readiness for printing/declaration of readiness for production. The same applies to all other release declarations of the customer.
b. The customer shall carefully inspect the delivered products or services immediately after delivery to him or to the third party designated by him. The delivered product or service shall be deemed to have been approved by the customer if we have not received a notice of defect with regard to obvious defects or other defects that were identifiable during an immediate, careful inspection in writing, including by fax or e-mail, within seven working days after delivery of the delivery item or otherwise within seven working days after discovery of the defect or any earlier point in time at which the defect was identifiable for the customer during normal use of the delivery item without closer inspection.
c. The obligation to inspect also concerns the preliminary and intermediate products sent for correction.
d. If the delivered products or services are defective, the customer may first demand that we remedy the defect or deliver defect-free products or services. Since the customer is an entrepreneur, we can choose between the removal of the defect or the delivery of a defect-free item (a prerequisite for our liability is that the defect is not insignificant). Should one or both types of this subsequent performance be impossible or disproportionate, we shall be entitled to refuse it. We may refuse subsequent performance as long as the customer does not fulfill his payment obligations towards us to an extent corresponding to the defect-free part of the performance.
e. At our request, the rejected delivery item shall be returned to us freight prepaid. Products returned freight collect will not be accepted.
f. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport costs, travel costs (most favorable shipping route), labor costs and material costs; costs shall not be borne insofar as additional costs are incurred due to the transfer of the item to a place other than the place of performance.
g. If subsequent performance pursuant to paragraph d. fails or is unreasonable for the customer or if we refuse subsequent performance, the customer shall be entitled in each case in accordance with the applicable law to withdraw from the contract, to reduce the purchase price or to claim damages or reimbursement of its futile expenses. Further claims of the customer for whatever legal reason are excluded or limited in accordance with § 15.
h. The warranty period is twelve months from delivery; if acceptance is required, from acceptance. A delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty. This does not apply to liability in case of injury to life, body, health and in case of gross negligence in the sense of § 309 No. 7 b) BGB (German Civil Code).
i. None of the above clauses is intended to change the statutory or judicial allocation of the burden of proof.
§ 15 Statutory rights of withdrawal of the parties and other liability of FLYERALARM
(1) The customer's statutory right of withdrawal shall - apart from the cases of § 14 - neither be excluded nor limited. Likewise, statutory rights and claims to which we are entitled shall neither be excluded nor limited.
(2) We shall be liable without limitation only for damages arising from injury to life, body or health that are based on an intentional or negligent breach of duty by us or an intentional or negligent breach of duty by our legal representatives or vicarious agents. We shall only be liable for other damages if these are based on an intentional or grossly negligent breach of duty by us or on an intentional or grossly negligent breach of duty by our representatives or vicarious agents.
Furthermore, we shall be liable without limitation for damages due to non-compliance with guarantees and warranties as well as for claims arising from endangerment facts (in particular under the Product Liability Act) and for breaches of cardinal obligations. A possible liability according to the principles of recourse of the entrepreneur according to §§ 478 f. BGB (German Civil Code) remains unaffected.
(3) In the event of a simple breach of a cardinal obligation, our remaining liability shall be limited to the foreseeable damage typical for the contract.
(4) In all other respects, liability - irrespective of the legal grounds (in particular claims arising from the breach of main and ancillary contractual obligations, tort and other tortious liability) - shall be excluded.
(5) The same (exclusions, limitation and exceptions thereto) shall apply to claims arising from culpa in contrahendo.
(6) In the event of reimbursement of expenses (with the exception of those pursuant to §§ 439 II, 635 II BGB – German Civil Code), this § 15 shall apply accordingly.
(7) Any exclusion or limitation of our liability shall also apply to our legal representatives and vicarious agents.
(8) Cardinal obligations are essential contractual obligations, i.e. those obligations which give the contract its character and on which the contractual partner may rely; these are thus the essential rights and obligations which create the prerequisites for the fulfillment of the contract and are indispensable for the achievement of the purpose of the contract.
(9) None of the above clauses is intended to change the statutory or judicial allocation of the burden of proof.
§ 16 Notification of transport damage by customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code)
(1) The customer shall notify the carrier of any loss of or damage to the product pursuant to Section 438 of the German Commercial Code (HGB). In the case of externally visible damage or shortages, this must be done at the latest upon delivery, otherwise (hidden defects) within seven days of delivery. The notification must identify the damage sufficiently clearly.
(2) Notification of damage after delivery shall be made in text form. Timely dispatch shall be sufficient to comply with the time limit.
(3) Section 438 of the German Commercial Code (HGB) shall apply in all other respects.
§ 17 Assignment, Right of Retention, Set-Off
(1) Assignments of claims of our customers against us are excluded. Excluded from this are claims for defects of customers who are consumers in the sense of § 13 BGB (German Civil Code).
(2) Our customers shall not be entitled to a right of retention against our claims unless such claims are undisputed or have been finally adjudicated or are ready for decision.
(3) A set-off of our customers' own claims against our claims shall also be excluded, unless the claims are undisputed or legally established or ready for decision.
§ 18 Third Party Rights, Indemnification, Order Execution in Special Cases
(1) The customer guarantees that the templates (in particular image and text files as well as references), contents and materials sent to us do not infringe any copyrights, trademark rights or other proprietary rights of third parties, the general right of personality or other rights of third parties.
(2) The Customer declares that it is in possession of the duplication and reproduction rights of the submitted data.
(3) The customer shall indemnify us upon first demand against all claims of third parties and undertakes to compensate us for any damage incurred by us due to the right of the third party. This also includes any legal costs incurred by us (lawyer's fees and court costs).
(4) We reserve the right not to execute the order insofar as
- the submission, the content of the transmitted data, the customer layout or the fulfillment of the order would violate applicable criminal laws or could be punished as a misdemeanor;
- the template, the content of the transmitted data, the customer layout or the fulfillment of the order violate the permitted inscriptions of the goods shipments and transport exclusions (Special Terms an Conditions for www.flyeralarm-mailings.com (DIALOGPOST, POSTWURFSPEZIAL, POSTAKTUELL) and Special Terms and Conditions for www.flyeralarm-mailings.com (PROSPEKTVERTEILUNG,VERSANDSERVICE)
- with the template, the content of the transmitted data or the customer layout obviously racist, xenophobic, violence glorifying, radical or otherwise anti-constitutional goals are pursued;
- the template, the content of the transmitted data or the client layout is sexist in nature; or
- the template, the content of the transmitted data or the customer layout disregards general ethical basic values, e.g. due to current political events, or is to be classified as immoral for other reasons.
(5) Furthermore, we reserve the right to permanently or temporarily block customers or their customer account in the event of violations of the regulations in our GTC, or in justified cases (e.g. identity theft or misuse, fraud or due to official or legal requirements) and to report potential violations of the law and not to accept any further orders from these customers in the future.
However, this does not mean that we are in any way obligated to check templates and content of the customer for potential violations of the law. The responsibility in this regard lies exclusively with the customer.
(6) If a customer orders the execution of an order which is in conflict with the above paragraphs, we shall be entitled to refuse the execution of the order. If we become aware of this violation after part of the performance owed has already been rendered, we shall be entitled to refuse further performance of the order and to demand compensation from the customer for the costs already incurred by us in this respect and for the loss of profit. The customer has the right to prove that we have not incurred any corresponding damage at all or that it is significantly lower.
§ 19 Blocking and deletion of customer accounts
(1) We reserve the right to deny the creation of a customer account to customers who represent an attitude or belong to a group that pursues illegal, xenophobic, violent, radical or otherwise unconstitutional goals or is not compatible with the general corporate principles of FLYERALARM.
(2) We reserve the right to temporarily or permanently block or delete customers or their customer accounts that fall under the above paragraph or violate our GTC or our general corporate principles. The same applies to customer accounts that register obviously unjustified warranty claims in excessive numbers in relation to the number of orders placed by the customer with us. The same applies to obvious errors in the context of data entry when registering a customer account.
(3) We reserve the right to delete customer accounts whose last, effective contract with us already dates back a period of 24 months or more. Before carrying out such a deletion, the customer will be informed by us with reasonable advance notice to prevent the deletion.
§ 20 Applicable law and place of jurisdiction
(1) The contract existing between us and the customer shall be governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) shall not apply.
(2) If the customer is a merchant within the meaning of § 1 I of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the courts in Würzburg shall have exclusive jurisdiction for all disputes arising from or in connection with the relevant contractual relationship. In all other cases, we or the customer may bring an action before any court having jurisdiction based on statutory provisions.
(3) FLYERALARM is entitled to transfer its rights and obligations under this contract in whole or in part to a third party with a notice period of four weeks. In this case, the customer shall be entitled to terminate the contract without notice and free of charge until the notice becomes effective.
(4) For customers who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), the following shall apply: in the case of continuing obligations, we may propose amendments to these General Terms and Conditions to the customer at any time. Amendments in this sense shall be offered to the customer in text form (e.g. by e-mail) no later than 4 weeks before the proposed date of their coming into effect. The customer shall be deemed to have given his consent if he does not notify us in text form of his rejection before the proposed date on which the amendments are to take effect. If the customer does not agree to the changes, he shall have the right to terminate the contract without notice and free of charge until the proposed date of entry into force of the changes.
(5) If a provision in these General Terms and Conditions or a provision within the scope of other agreements is or becomes invalid, this shall not affect the validity of all other provisions or agreements.
(6) All business relations of FLYERALARM with customers shall be governed by the corporate principles set forth in the FLYERALARM Code of Conduct.
(7) Translations of the General Terms and Conditions in the German language version exist in other language versions. In the event of contradictions between the German version and other language versions of the General Terms and Conditions and the Special Terms and Conditions of these General Terms and Conditions, the German version shall always prevail.
Dispute resolution for consumers: We are not willing and not obliged to participate in a dispute resolution procedure before a consumer arbitration board.
