General Term & Conditions
SOURCE GmbH, Head Office, Hagenauer Straße 53 A, 65203 Wiesbaden, Germany, firstname.lastname@example.org (hereinafter referred to as “SOURCE”) offers its customers complete creative solutions in the area of marketing. This includes in particular but is not limited to the development, design and procurement of promotional items and advertising materials. In this respect, SOURCE is engaged in promotional item/advertising material management. SOURCE supplies goods exclusively to trade customers (not to end customers/consumers).
To complement other sales channels, SOURCE operates an online shop via its website. This online shop is also exclusively intended for use by businesses and is expressly not for end customers/consumers. A customer using SOURCE’s online shop (referred to as “the customer” in these terms) confirms by the use of the online shop their agreement to these terms and conditions (“these terms”) and that the customer is a commercial trader and not an end customer (consumer). Order requests placed on SOURCE’s web site are only accepted on condition that the customer represents they are a knowledgeable purchaser in the way of business of the type of items ordered and not entitled to any rights under consumer protection legislation.
Headings in these terms are for reference and do not form part of the legal provisions.
These terms conclusively govern the legal relationships between SOURCE and its customers. The customer acknowledges that these terms and conditions are binding, even for future transactions with SOURCE.
These terms are final and, together with any terms expressly agreed in relation to specific orders confirmed by SOURCE in accordance with these terms are the entire agreement between SOURCE and the customer. Any customer terms of purchase which differ from these terms and conditions shall be disregarded and are herewith expressly rejected. Furthermore, agreements made other than in accordance with these terms in relation to or in contemplation of orders from SOURCE have no effect. Such agreements must be made in writing and signed by both parties to be validly included.
SOURCE reserves the right to make amendments - even unilateral amendments- to these terms and/or to individual parts of these terms. The latest version of these terms that is valid on the date when an order is confirmed by SOURCE shall apply.
The customer acknowledges that certain products and services are subject to special import/export controls and/or import/export restrictions under certain circumstances. It is solely the customer’s responsibility to review and comply with such regulations that apply to the customer’s order ahead of time. Therefore, the customer agrees that no product supplied by SOURCE may be exported or resold, respectively – either directly or indirectly, separately or as part of a system – without the customer first having complied with all relevant regulations and applicable statutory provisions at the customer’s own expense, and, for example, also having obtained the necessary permits from the appropriate authority and/or other (government) agency. The same shall apply insofar as special documents might be required for products destined to be imported or exported. In principle, the customer shall also be solely responsible for the acquisition of such documents. If the customer needs a certificate of origin, the customer shall so inform SOURCE when placing the order; SOURCE is entitled to bill the customer a flat rate of € 20.00 per certificate of origin for the (additional) time and effort involved with requesting/issuing such a certificate of origin.
3. Contract Formation
Products and services offered by SOURCE in catalogues and/or via the online shop shall be considered non-binding invitations to treat for which the customer must make an offer. As such, the respective specifications and more detailed definitions of the products and services offered by SOURCE are without obligation and non-binding. Requests submitted by customers via the SOURCE online shop are made with the intention to create a legally binding contract and on condition the customer places the order in the course of business, as specified in clause 1. A declaration of intent from the customer with the aim of forming a contract always represents an offer. The customer is bound by this declaration of intent insofar as SOURCE has the products and services ordered by the customer in stock with the desired specification and in the quantity required or such products can be delivered within an appropriate period of time. If the customer does not receive a message from SOURCE confirming this within 14 days of the submission of the offer and SOURCE has not yet begun executing the order, the customer shall no longer be bound by his offer. Full details of the customer’s request, the quantity, price, description of the items to be ordered and payment terms are all presented to the customer at the time of concluding a request via the SOURCE online shop. The customer has the opportunity, through using the appropriate web page links, to cancel or change a request for the supply of goods and/or services via SOURCE’s online shop before final submission.
Confirmation from SOURCE that it has received an order/offer shall not be deemed acceptance.
Declarations of intent made by SOURCE in the course of the contract formation are always given subject to the proviso that SOURCE itself receives correct and timely deliveries from its sub-suppliers, unless SOURCE is itself responsible for any incorrect delivery or non-delivery. If it proves to be impossible for SOURCE to execute a contract - due to the non-availability of a particular product, for example - SOURCE shall immediately so inform the customer and, where applicable, any prepayment – in full or in part - shall be refunded immediately.
The customer agrees to pay for advance services carried out at the request of the customer within the framework of the initiation of a contractual relationship (for example, designs or drafts), while taking into account the amount of time involved, even if a contract is not subsequently finalised between the parties, provided that SOURCE is not responsible for the non-finalisation.
If SOURCE carries out advance services of the type described above, the work results of this must be approved by the customer following inspection prior to further implementation of the contract. The inspection period shall be limited to two weeks from the customer’s receipt of the results. Once the inspection period expires, approval shall be deemed as given.
A contract for the supply of goods and/or services (which may also be referred to in these terms as an “order”) shall only be legally formed in accordance with these terms and the written confirmation of the relevant order being issued by SOURCE to the customer’s registered email address or fax number. The customer accepts responsibility for providing an accurate email address (and/or fax number) to which order confirmations and other communications will be sent by SOURCE and any inaccuracy in the customer’s email address or inability of the customer to receive or access their email shall not prevent the formation of a contract with SOURCE in accordance with these terms. After the formation of a contract, SOURCE shall have begun services to comply with the customer’s order and, therefore, the customer is not entitled to cancel the contracted order. SOURCE may, in its sole discretion, allow the customer to cancel an order, subject to payment of an cancellation charge equal to 20% of the order value, if and as long as the goods comprising the subject-matter of the contract have not yet been bindingly ordered by SOURCE, for example, from a sub- contractor to SOURCE. Such a cancellation by the customer is only valid, if the cancellation charge is paid to SOURCE no later than the date of the cancellation. SOURCE is not obliged to accept cancellation requests after confirmation of any order in accordance with this clause 3.5.
Pricing information provided by SOURCE is quoted subject to the addition of applicable VAT in effect at the time. Shipping and packing costs are not included in item prices.
4. Dispatch, Delivery and Passing of risk
Delivery of items ordered shall be subject to payment by the customer in advance unless the parties have agreed to another payment method in writing. The same shall apply in the event of the delivery of samples to be sent to the customer at the customer’s request. Delivery for the purpose of contract performance shall take place on the items ordered becoming available to the dispatch consignment company for collection from the designated address supplied by SOURCE, unless otherwise agreed in writing by SOURCE.
The customer shall pay the costs incurred in the course of the dispatch (shipping and packing costs).
SOURCE is entitled to increase prices for the services SOURCE is to provide under the contract in accordance with a general increase in costs if more than six weeks lie between the formation of the contract and the agreed delivery date and if wages, the costs of materials or market acquisition prices increase or exchange rates change after the formation of the contract and prior to completion.
SOURCE is responsible for selecting the company to be commissioned with the consignment of the goods. This selection shall be made in the customer’s interest following a careful and diligent examination.
Once the goods are handed over to the company commissioned with their dispatch, SOURCE shall have fulfilled its delivery obligations. At the same time, the risk for any damage occurring to the goods shall pass to the customer.
SOURCE shall fulfil its contractual obligations with reasonable care and in the customer’s interest. The parties are aware that there may be a marginal variations in quantities delivered of up to 10% for production reasons. SOURCE shall also be entitled to make reasonable substitutions for items ordered where the replacement items are of at least similar performance. A merely negligible reduction in usability of any replaced item shall be disregarded and does not entitle the customer to assert any warranty rights. In the case of a short delivery, SOURCE will provide the customer with a credit voucher. Post-production or the like is not possible. In the case of excess delivery, the customer agrees to pay the corresponding price for the items delivered, which will be charged accordingly.
Save as provided in 5.1 the customer accepts that the items ordered are provided in accordance with description and with the benefit of manufacturer’s warranties so far as these are transferable to the customer, but otherwise without any undertaking, warranty or representation of any kind by SOURCE whatsoever.
Save as expressly provided in these terms and as may be expressly agreed in writing by SOURCE in its sole discretion, all warranties, undertakings, representations and terms (whether implied by statute or otherwise) are hereby excluded.
Should products supplied by SOURCE be customised at the customer’s request with laser etchings or laser engravings, some contrast and/or deviations in colour may arise due to product-related aspects such as the composition of natural materials. This can also occur in serial production. SOURCE can assume no responsibility for such colour variations in the engraving contrast.
In the case of prints, customary and technically unavoidable tolerances in colour, quality, material, light fastness, variability and deviations in weight and/or material and printing inks are no cause for customer complaints. This also holds for any colour deviations between the printer’s copy and reproductions, as well as proofs and print editions/production prints. A production sample serves as a decision guide for the customer in terms of logo size, shape and placement. Refered to here, is individual/customised production, where products cannot be 100% mirrored during mass production.Due to technical realities, slight colour deviations to the original sample or late delivery should not be ruled out
SOURCE shall make every effort to process confirmed orders as quickly as possible, but will not make any warranty for particular delivery deadlines unless a particular delivery date is expressly confirmed as firm by SOURCE in writing.
On receipt of the products supplied by SOURCE, the customer is obligated to inspect these products without undue delay and with due care. Any defects or non-conformance to the order must be reported to SOURCE immediately after learning of such defects. The same applies to those defects which are only detected later.
If there is a defect for which SOURCE is responsible, SOURCE shall be free to rectify the defect at its own expense (re-performance) or to deliver a replacement in exchange for the defective item(s) as soon as reasonably practicable. If the re-performance fails twice, the customer can decide to either cancel the affected order or to demand a reduction in the purchase price of the affected item(s).
The costs which arise in the course of any re-performance, in particular but not limited to transport costs (including without limitation any tolls and other charges levied in transit), shall only be borne by SOURCE on a like for like basis with the original order. So that, for example, if the customer has moved the item(s) affected to a location other than the shipment address to which the item(s) were ordered, SOURCE shall only bear the costs of a delivery of repaired or replaced items to the order shipment address.
SOURCE will only accept items returned by the customer with a Customer Return Number issued by SOURCE. SOURCE will only bear the costs of shipment of repaired or replaced item(s) if the returned item(s) are found to be covered by a legitimate warranty claim.
The warranty given in clause 5.1 shall be for the period of 30 days from the date of delivery to the specified customer shipment address, provided that written notification of any claim on the warranty is given to SOURCE within 7 days of the non-conformance to warranty being discovered.
6. Limitation and Exclusions of Liability
Other than for any personal injury or death caused by SOURCE’s own negligence or any loss or damage caused by fraudulent misrepresentation by SOURCE:
a) SOURCE hereby excludes all liability in excess of the APPLICABLE LIMIT for any loss or damage suffered by the customer, howsoever caused.
b) SOURCE shall only be liable for direct loss or damage arising from SOURCE’s own breach of contract, breach of statutory duty or negligence up to the APPLICABLE LIMIT.
c) Notwithstanding the foregoing SOURCE hereby excludes all liability whatsoever for loss of profit, loss of contract, loss of anticipated savings and any kind of financial loss howsoever arising from the supply of any items to the customer by SOURCE.
d) SOURCE hereby excludes all liability whatsoever for any consequential loss or damage howsoever arising from the supply of any items to the customer by SOURCE.
The “APPLICABLE LIMIT” shall be the lesser of: a sum equal to 150% of the price payable for the affected order”
Within the framework of the processing of the contract, SOURCE shall not accept any liability for ensuring that the execution of the customer’s order does not breach statutory provisions, in particular but not limited to any breach of third-party rights, or does not affect any competition law regulations. The customer is responsible for checking in advance and ensuring that the services and products ordered from SOURCE may be lawfully manufactured and sold. The customer agrees to keep SOURCE fully and effectively indemnified against claim against SOURCE covered by this clause 6.2
Under no circumstances will third parties who are not part of the contract concluded between SOURCE and the customer be entitled to enforce any rights arising through contracts made under these terms.
The limitation period for claims against SOURCE which are not based on premeditated behaviour on the part of SOURCE shall be one year from the delivery of the relevant item(s).
7. Payment Terms (Extended) Retention of Title
Once a contract has been formed, SOURCE is entitled to request payment of the expected final invoice amount in advance from the customer or a lower amount at SOURCE’s discretion. In particular, SOURCE shall avail itself of this right in relation to new customers. In this respect, SOURCE points out that the contractual items/advertising materials are goods which have to be produced individually for the respective customer and that SOURCE will not pay its suppliers for goods in advance of a payment from the customer. Where SOURCE requests an advance payment of less than the full amount of the order value, SOURCE shall only begin manufacturing/commissioning the ordered items once the respective payment has been received.
If an order has definable part(s) that are services, in particular but not limited to the formulation of concepts or the like, part payments towards the total cost shall fall due following their provision of the relevant part(s) in proportion to the value of the service to the overall payment that is to be made. SOURCE is entitled to demand part payment for services by written notification without prejudice to section 7.1 above, i.e. particularly in a situation where the final invoice amount that is expected has not been requested in advance by SOURCE.
Payments in advance from the customer as per sections 7.1 and 7.2 above shall be offset against the final invoice for the order. On the date the risk passes to the customer in accordance with these terms for item(s) supplied, the whole or the balance of the amount to be paid by the customer will be due for immediate payment without any deductions. The customer shall be in default if the payment of the final amount, or any part payment, is not received by SOURCE within 30 days of the relevant date. The customer must pay SOURCE for the loss incurred by the delay in payment by paying eight percentage points plus the respective basic rate of interest (interest on arrears).
All of the items delivered to the customer shall remain the property of SOURCE until they have been paid for in full. The customer shall be fully liable for such items that are still the property of SOURCE and shall keep them separate and unmixed with any other products until full payment has been received by SOURCE.
The customer is entitled to use the products delivered to him or to sell such products during the ordinary course of business. However, title to any items supplied by SOURCE shall not be transferred until the customer has complied with its payment obligations to SOURCE. The customer hereby grants SOURCE an irrevocable power of attorney over: all receivables which the customer may be entitled to and any monies due to the customer from sales of items supplied by SOURCE to customer that have not been paid for in full, and all claims for insurance payments related to the destruction or damage of such items. The customer grants SOURCE the right to enter its premises, on reasonable notice, in the course of exercising its rights under this clause 7.5. SOURCE has the right under the power of attorney to collect these receivables. SOURCE shall only exercise the power of attorney and shall only collect the assigned receivables if the customer defaults on payment obligations to SOURCE, stops making payments, or if a motion to institute bankruptcy or insolvency proceedings has been filed at any Court.
In no case is a customer entitled to offset payments due to SOURCE with receivables claimed against SOURCE. By way of exception, this shall not apply to receivables which are undisputed or have become legally enforceable by a court order or otherwise. Furthermore, the customer is not entitled to refuse any payment by virtue of outstanding warranty claims, unless the customer's notice of defects has been acknowledged in writing by SOURCE.
Services provided by SOURCE for the customer within the framework of a contract under these terms or in contemplation of such a contract, whether or not paid for by the customer in particular (but not limited to) services for the formulation of designs, concepts, drafts, etc. shall not transfer to or grant any rights to the customer in any intellectual property rights subsisting in the work produced by SOURCE. All intellectual property rights in such work shall remain exclusively with SOURCE in including (but not limited to) copyrights/ registered and unregistered design rights/ rights in trade marks and rights in inventions. The right to use and/or exploit the foregoing rights of whatever kind shall only be granted to the customer by written agreement signed by the duly authorised officers of SOURCE and customer. The provisions of this clause 8 also apply if the work produced by SOURCE have been created in cooperation with the customer or in accordance with the customer’s instructions, in which case the customer agrees to hold all rights in such work jointly, but shall irrevocably waive assertion of its rights of use, exploitation rights and all intellectual property rights in favour of SOURCE.
The customer represents and warrants, when making a request for an order that all the information and materials provided by the customer to SOURCE in the of the order is either free of any third-party rights or that the customer has been granted all rights of use for such information and materials from the respective rightful claimants necessary to the performance of the order by SOURCE. The customer’s request for order is the customer’s agreement to indemnify and keep SOURCE fully and effectively indemnified against any costs, claims, proceedings or demands from any third parties asserting any rights against SOURCE in relation to the services and/or items supplied by SOURCE to the customer and/or parts thereof in accordance with the contract. The customer must clarify ownership of all rights in the information and materials given to SOURCE prior to confirmation of any order. In particular (without limitation), the customer agrees that all logos/symbols and other files supplied by the customer for each respective order are covered by the foregoing provision.
All information, films, tools, screens, filters, embroidery cards, and similar materials required for production purposes in connection with an order placed with SOURCE will not be stored after the order has been filled. SOURCE shall bear no liability for disposing of any such items on completion of an order.
9. Data Protection
The customer and SOURCE each undertake to the other to perform their respective obligations as data controllers under the Data Protection Act 1998. The customer warrants that it is entitled to provide any personal data supplied to SOURCE from time to time in connection with the performance of any business between SOURCE and the customer.
SOURCE shall be entitled to save and use any personal data supplied by the customer to process the order and to forward such data to third parties for this purpose, if necessary. If the customer provides comments on SOURCE’s business, products or service SOURCE the customer agrees that the comments, attributed or unattributed, may be used by SOURCE in promotional and marketing literature. The customer can revoke the use of such comments at any time.
Customer-supplied personal data shall not be passed on to third parties for advertising purposes.
The customer agrees to SOURCE cookies being stored on the customer’s computer(s) to enable the customer to make best use of the SOURCE on-line shop. Cookies can be removed by the customer at any time using appropriate functions in the customer’s browsing software.
10. Severability Clause
If individual provisions of these terms should be or become legally invalid in full or in part or be ruled unenforceable such provision(s) shall to the extent necessary be deemed omitted from these terms and the remaining provisions shall continue in full force and effect. The parties agree that any omitted provision must be replaced by one whose economic and legal sense comes as close as possible to the omitted provision but is legally valid and enforceable.
11. Applicable Law and Jurisdiction
The UN Convention on Contracts for the International Sale of Goods shall not apply to any contract made under these terms. The customer agrees when it requests an order from SOURCE that English is the language of the contract, the laws of England and Wales shall apply exclusively to all contracts concluded with SOURCE and both parties irrevocably submit to the jurisdiction of the English Courts in relation to any dispute between them arising in connection with any contract made under these terms.
SOURCE, a company registered in Germany. Registered office address: Hagenauer Straße 53A, 65203 Wiesbaden, Germany. Register court: Wiesbaden Local Court. Register number: 22 HRB 13087. VAT Number: DE221305468. SOURCE is SOURCE is proud member of the PSI / PSI no. 11974. UK office postel address: 27 Old Gloucester Street, London, WC1N 3AX.
The customer may download and print a copy of these terms for reference at any time.