General Terms and Conditions of Business

General Terms and Conditions of the Provider Bluebird-Balloons
 

1. General

1.1 If not otherwise agreed in writing, the contract language is German for customers in Germany, Austria and Switzerland, and English for customers in all other countries.
1.2 Our General Terms and Conditions, that are listed in the following, do exclusively apply to our offers, purchase agreements, rental agreements, shipments, services and other legal business. They apply if we and the customer do not otherwise agree in writing. In this connection, the purchase conditions/General Terms and Conditions of the customer are expressly contradicted. With its order, the customer acknowledges our General Terms and Conditions, and expressly and completely recognises them as sole basis of the business relationship.
1.3 Our offer is exclusively directed towards merchants, i.e. towards entrepreneurs within the meaning of the German law according to Section 14 BGB [German Civil Code]. We will reject orders/purchase offers of consumers within the meaning of Section 13 BGB [German Civil Code]. For this purpose we reserve the right to review the VAT ID No. of the customer. An order may be placed by entrepreneurs only in the exercise of their commercial or self-employed occupational activity, and the ordered goods may be used exclusively for its professional sector.
1.4 The present General Terms and Conditions do also apply to any further offers, orders and agreements, without having to be agreed on again separately.

2. Offers, Specific Printing Issues and Conclusion of Contract

2.1 Our offers are always non-binding, unless otherwise and expressly stated in the offer, and do not oblige the recipient to accept the order. Orders and order extensions are only valid in writing. Oral agreements and side agreements will only be valid if put into writing. A purchase agreement comes into existence only through our written order confirmation or through our actual delivery/performance. A confirmation of the receipt of your order is not an order confirmation. If the contract is concluded through delivery, the customer waives an express declaration of acceptance.
2.2 Descriptions of products in our offers, order confirmations, catalogues and brochures, as well as on the internet (shop), etc. are only approximately applicable. Deviations with respect to material, colour, weight, dimension, technical design and similar features remain reserved if the delivery item thus remains acceptable for the customer. Besides that, any and all indications of quantity and dimension, as well as any and all similar features include customary commercial tolerances.
2.3 Due to the characteristics of the respectively used materials, printing may lead to colour abrasion (white spots), drop formation on areas that are not intended for printing, or also – especially in the case of a full printout with only one or few colours – striation. When folding the object it furthermore may happen that there is colour abrasion and/or colour transfer in areas that are glued together. When placing its order the customer accepts these printing errors.
2.4 We expressly reserve the property rights and copyrights with respect to cost estimates, drawings and other documents of the offer, especially illustrations. The customer is not allowed to make such documents available to third parties. Upon our request these have to be returned to us. This does also apply if the threshold of originality of a work within the meaning of the copyright law is not reached.

3. Prices, Conditions, Cancellations, Discount

3.1 Our prices do respectively apply corresponding to our current price list. If not otherwise agreed in writing, the prices are net prices plus VAT, costs for personnel, service, transport, import, shipment, bank expenses and other costs. Our prices are acknowledged with the order confirmation.
3.2 If not otherwise agreed in writing, the method of payment is prepayment.
3.3 All price indications in offers, brochures, internet (shop) or order confirmations are calculated according to the prices for material, pay and cargos that are valid on the day of the order. If these costs change until the execution of the order, we are entitled to change the agreed price appropriately. However, the increased price remains limited to the price that is implementable in the market. This price change clause does also apply if the original delivery date is subsequently changed on request of the customer.
3.4 In the case of custom-made products and individual labels the order is accepted and executed only against a prepayment of up to 75 % of the invoice amount.
3.5 Our invoice/contract is considered as bindingly accepted with the written acceptance of the customer (for example via email) or with payment of the invoice (also 1st instalment). After (partial) payment/written acceptance of the customer, we place the order internally to create the order content. The customer has to pay the 2nd instalment at completion (if agreed also partial completion) of the order content, however, in any case before the final shipment. The customer waives a reimbursement of the 1st instalment if the execution of the order content does not correspond to its ideas, and if this deviation cannot be traced back to a gross negligence of Bluebird-Balloons (which the customer has to prove). In this case, the 1st instalment is considered as compensation for material/expenses. The created object does not become the property of the customer and remains in possession of Bluebird-Balloons together with all rights thereto. Bluebird-Balloons is not liable for errors of (commissioned) third parties in connection with the creation of the order content. If, after the completion of the order, an object proves to be technically not feasible (or if it does not make any sense to complete the object), Bluebird-Balloons may at any time withdraw from the order. Any payments that have already been made by the customer are then (free of interest) completely or, if otherwise agreed by contract, partially paid back. In this case any further recourse claims of the customer are excluded (if the customer cannot prove that Bluebird-Balloons has acted with gross negligence).
3.6 Cancellations are possible within seven days of placement of the order. In this case, the due cancellation fee will be 50 %. In case of custom-made products, express deliveries and helium orders, cancellations are not accepted. If we are required to mandate third parties with the execution of the customer order, their costs – that might be invoiced to us – cannot be cancelled.
3.7 For graphical services, data processing and changes during the order we reserve the right to invoice the additional expenditure incurred.
3.8 A discount deduction is admissible only if it has been explicitly agreed on.
3.9 Bluebird-Balloons is at any time, also after the acceptance of the order, entitled to refuse the agreed performance, i.e. the delivery, if the customer makes late payments, or if the provider Bluebird-Balloons is informed about circumstances concerning the economic situation of the customer, through which its claims do no longer seem sufficiently secured.

4. Packaging

The customer waives the return of packages and will dispose of them properly.

5. Safekeeping

Bluebird-Balloons is not liable for the templates, patterns, print media and other objects serving for reuse that are not collected by the customer.

6. Processing and Delivery Times, Partial Delivery, Duties

6.1 The respective delivery times of our products are approximate and not binding for us, unless Bluebird-Balloons has explicitly directed otherwise in writing when accepting the order. For the compliance with delivery deadlines it is necessary to fulfil the contractual obligations of the customer. The delivery time begins with the sending of our order confirmation, however, not before the receipt of useable graphical templates in the agreed file formats, approval of the labelling by the customer, and provision of the documents, consents and other approvals by the customer, and not before the receipt of the agreed (down) payment.
6.2 Delivery deadlines apply subject to the timely own supply and subject to the non-foreseeable incidents with us or our supplier, such as delay through waiting time for customs clearance, delay with respect to the completion of important delivery parts, belated delivery of essential raw materials, force majeure (as force majeure there do especially apply: strikes, lack of raw material or lack of goods, breakdowns such as for example weather/atmospheric conditions), official measures, general breakdowns, etc. that we are not responsible for (as far as these incidents have any impact on the completion or delivery of the delivery item). If such events occur, we are entitled to delay the delivery or performance by a corresponding duration and an adequate start-up period, or to wholly or partly rescind from the contract because of the not yet fulfilled part of the contract.
6.3 For the failure to meet agreed delivery times which we are responsible for, the customer is entitled to the following claims: 1. The rescission from the contract is possible only in the case of our delay and an adequate extension of time with express threat of the refusal of the performance after expiry of the grace period. 2. In the case of our delay, a compensation for delay in the amount of 0.5 % for any completed week of the delay, in total no more than 5 % of the invoice value, may be demanded without VAT and transport insurance of the delivery and service that is subject to the delay. Any further reimbursement claims from delay are excluded, unless the delay is based on at least gross negligence of the provider Bluebird-Balloons.
6.4 Partial deliveries are, if reasonable for the customer, allowed, and are considered to be concluded transactions.
6.5 In the case of deliveries in non-European countries there will be additional duties and fees. These have to be paid by the recipient/customer. Bluebird-Balloons has no influence on these duties/fees, and is not able to make any statements concerning their amount.

7. Transfer of Risk, Default of Acceptance

7.1 The risk is transferred to the customer at loading (at the latest). If the delivery does not take place, and if the customer is responsible for the reasons, the risk will be transferred at readiness for shipment. In these cases the goods that are ready for shipment are stored (as the case may be in warehouses of third parties), and the customer will receive the corresponding invoice and bear the corresponding risk. The maturity of the invoice remains unaffected. Any incurring storage costs (of third parties) shall be paid by the customer.
7.2 The recipient must immediately inform us about any transport damages. Transport insurance will be concluded only on the express request of the customer. In case of transport damages that are not covered by the transport insurance, we are entitled to either receive the insurance sum and deliver parts for replacement, or to demand the payment of the purchase price from the customer against assignment of the insurance sum.
7.3 If our employees or commissioned parties participate in loading or unloading, they act at the customer’s risk as its vicarious agents.
7.4 If not otherwise agreed in writing, Bluebird-Balloons may choose the type of delivery. Bluebird-Balloons will usually choose a standard delivery option. If the customer desires a type of delivery that deviates from our type of delivery – for example, express delivery or future delivery – the customer has to pay any additional costs. Each type of delivery delay or loss of the delivery through commissioned third parties/delivery companies that cannot be traced back to gross negligence of Bluebird-Balloons cannot be offset against Bluebird-Balloons or become the subject of reimbursement claims. Bluebird-Balloons is not liable for personal injuries or material damages that are caused by vehicles or drivers in connection with the delivery.
7.5 In the case of delay of acceptance of the customer we are, after fruitless expiry of an adequate grace period and in addition to the legal provisions, entitled to either demand the execution of the order or compensation in the amount of 50 % of the net order value, unless the customer is able to prove that there is only a substantially smaller damage or no damage at all, or to rescind from the contract. The assertion of a higher actual damage remains reserved. This does especially also apply in the case of custom-made products or special products.

8. Warranty

8.1 The items that we deliver must, also if patterns had been sent, immediately be checked for defects. Possible transport damages on goods that have been delivered by us have to be immediately asserted towards the carrier. The corresponding evidence has to be secured (as the case may be, with the help of an expert). Short deliveries or wrong deliveries as well as possible obvious defects may be objected to only in writing and within 10 days of receipt. The delivery, i.e. the performance, is considered approved if obvious defects or defects that were detected during the examination, quantity differences or an obvious wrong delivery is/are not communicated to us in writing and within a limitation period of 10 days after arrival of the goods at the place of destination, however, in each case before processing/use.
8.2 The customer has to make a complaint about hidden defects that – also despite thorough examination – cannot be detected within this deadline. The complaint has, at the latest, to be made within a limitation period of 10 days after discovery of the hidden defects and in writing. Non-obvious defects have to be asserted within six months of receipt and in writing. Objected goods have to be returned to us free of charge and will be examined. If the examination results in manufacturing defects or material defects, we will, at our discretion, remedy or repair the defects or credit the invoice amount. Any further liability, especially also for damages that have not occurred on the delivered goods as such, is excluded, unless we acted with intent or gross negligence.
8.3 Unless any contract or law states otherwise, the warranty claims become time-barred with the expiry of one year after the transfer of risk. In case of used items the warranty period is six months. If the manufacturer of the delivery item allows a longer warranty period or a guarantee, we cede our corresponding rights, already with the purchase, to the customer.
8.4 In the event of the warranty being availed of, we will, in consultation with the manufacturer and at our option, remedy or replace the delivery item(s). We are not obliged to reimburse any necessary expenses, especially costs for transport, road costs, labour costs and material costs that arise because the purchase item was delivered to another place than the place of destination. If repairs or replacement deliveries fail two times with respect to a defect, and if this is proven, or if the elimination of the defect demands an unreasonable amount of work, and if the remedy is subsequently refused, the customer may, at its option, demand a reduction of the purchase price or a cancellation of the contract. The customer has to take this decision within a deadline of two weeks.
8.5 If an examination of the goods within the framework of the complaint reveals that the complaint has been made wrongly, we are entitled to invoice a customary remuneration for the examination of the goods, as well as the costs for the delivery.
8.6 We are not liable for damages that are based on improper use and storage, improper handling, wrong installation or natural wear. Repair or other interference undertaken by the customer or any third party without our consent shall render all warranty claims void.

9. Compensation Claims and Liability

9.1 If there is no grossly negligent or intentional infringement of any contractual obligation, damage claims are, irrespective of the legal reason, excluded. This does especially apply to contractual infringements through simple vicarious agents. We are liable solely for the quality of the goods from third parties and for quality indications of the manufacturer, if we are culpable of intent or gross negligence.
9.2 The liability shall in any case be limited to the replacement of the foreseeable damage at the time the contract was concluded.
9.3 The liability limitation does not apply to personal injuries.
9.4 All damage claims will, irrespective of the legal reason, become time-barred with the expiry of one year after awareness thereof, unless a longer limitation period is compulsorily prescribed by applicable law, or if this was tolerated deliberately.

10. Costs for Installation, Maintenance and Care Work, Rental Use

10.1 If no contractual provision states otherwise, any work of the provider Bluebird-Balloons is invoiced at the respectively valid rates. Necessary train journeys or travels by air (Economy class or comparable class) are invoiced against expenditure incurred. Working time/travelling time is calculated at 45 EUR (net) per hour at a minimum. The above-mentioned hourly rate will increase by 40 % in the case of night work (08:00 pm until 06:00 am) and work on weekends/bank holidays. Daily rate (no more than eight hours including travelling time) at least 450 EUR (net). If not contractually stated otherwise, a daily allowance in the amount of 65 EUR (net) per day and per person will apply for Germany. If not otherwise indicated, travel costs are calculated at 0.55 EUR (net) for each driven kilometre. The costs for a trailer start at 50 EUR (net) for the first day and 25 EUR (net) for each further day. If the customer is present at the place of the event for more than one day, the customer is obliged to provide the personnel with accommodation (single room) in the at least medium price segment of typical local hotels. The customer must furthermore give the provider the possibility to park all vehicles that are needed by the provider on secured parking spaces in the immediate vicinity of the hotel accommodation.
10.2 Rented items have to be treated with care, and must, if not otherwise agreed, be returned to Bluebird-Balloons immediately after use and at the cost of the borrower; i.e. Bluebird-Balloons must, if agreed, be granted free access for collection. Damages that exceed normal use entitle Bluebird-Balloons to keep correspondingly and in advance paid deposits and/or to demand further payments.

11. Ascending Work, Approvals and Individual Inspections

11.1 In case of ascending work (balloons, inflatables etc.) for the customer that is carried out at a height of more than 30 metres (measured from the ground to the upper side of the flying object), the customer has to present a separate aviation insurance as well as an ascending permission of the respectively responsible regulatory authority. The customer is solely responsible for the granting of the ascending permission. Due to insurance reasons the execution of an ascending order at a height of more than 30 metres is not possible without an additional insurance and ascending permission.
11.2 The customer is responsible for obtaining and fulfilling any necessary approvals and individual inspections of products that are received by Bluebird-Balloons. Delays due to the approval procedure have no impact on the purchase agreement. Existing purchase agreements are not affected by the granting/denying of approvals and individual inspections that have been applied for.

12. Delivery and Assembly Work

Delivery will be made at the risk and on the account of the customer. If additional information of the customer is missing, we will deliver at our discretion. This does also apply to guarantee cases and assembly orders where the product is delivered by the assembler. Bluebird-Balloons carries out assembly work only with regard to the product. The preparation of the assembly site, for example with suspension points/anchors, is the responsibility of the customer and/or is done at the risk of the customer and will need the corresponding approval(s).

13. Services and Renting within the Scope of Events

13.1 Outdoor services are dependent on wind and the weather. If the offered service can – due to the influences of wind or the weather – not (completely) be rendered on an agreed date, the obligation of the provider Bluebird-Balloons to render the service on this concrete date will cease to exist. The decision whether the service can still be rendered is subject solely to the dutiful assessment of Bluebird-Balloons and its employees under adequate consideration of the interests of the customer. In such a case the agreed fees for the work that shall be performed have to be paid by the customer, however, at least for the work that has already been performed until the discontinuance. Costs of third parties that cannot be reduced have to be paid in full by the customer.
13.2 If all preparatory work has already been completed by Bluebird-Balloons, the whole amount that has been agreed for the performance has to be paid. It remains at the liberty of the customer to prove the provider Bluebird-Balloons has incurred a lower expenditure than the one that was invoiced.
13.3 If no contract states otherwise, the customer will, with respect to the assembly and disassembly of items (of whatever kind), and that are the property of the customer, take care of all necessary official approval and insurance requirements.

14. Reusable Containers for Helium Gas/Balloon Gas, Bottle Fill Units

14.1 The reusable containers for helium gas/balloon gas and bottle fill units that are delivered by Bluebird-Balloons are, if not otherwise agreed in writing, exclusively rented, and not sold. Rented reusable containers for helium gas/balloon gas and bottle fill units have to be safely stored by the customer during the whole rental time to prevent access by third parties. The items that have been left for use remain our property in any case. For each reusable container for helium gas/balloon gas there will, if not otherwise agreed in writing, be a deposit of 150 EUR, for each pressure regulator a deposit of 149 EUR. A possible replacement (i.e. deduction of the deposit) comes into force if the customer loses the rented object, does not send it back in time or damages it. The replacement costs will be 250 EUR (net) for each reusable container for helium gas/balloon gas, i.e. 149 EUR (net) for each pressure regulator. The reusable containers for helium gas/balloon gas may only be used for the purposeful filling of balloons/inflatables. Warranty claims for gas/test or bursting losses are excluded. This does also apply in the case of own transport, storage and handling by the customer.
14.2 The reusable containers for helium gas/balloon gas are (if not otherwise agreed in writing) transported by us or by a company commissioned by us. The return of reusable containers for helium gas/balloon gas that were not supplied by us does not free the customer from the payment and return obligation. The rent-free period is no longer than 14 days (from arrival of the helium gas/balloon gas delivery at the agreed place or starting with the day of the collection by the customer). If the customer exceeds this rent-free period, the customer will accept a rent payment of 0.75 EUR (net) for each container for helium gas/balloon gas from the 15th until the 30th day. Maximum rental period: 30 days. Any (foreseeable) exceedance of the agreed rental periods has to be agreed with us as early as possible.
14.3 A reimbursement for unused helium gas/balloon gas is, also when returning completely unused containers, excluded.
14.4 The renting of reusable containers for helium gas/balloon gas on commission is possible in exceptional cases (however, basically only upon consultation).

15. Retention of Title

15.1 Bluebird-Balloons reserves the ownership of the delivered goods until the complete payment of any and all claims from the business relationship between Bluebird-Balloons and the customer. The inclusion of individual claims in an open account, the current accounting as well as the establishment and recognition of balances shall not affect this retention of title.
15.2 When installed in a building, gas and pressure devices do not become an integral part of that building.
15.3 If the behaviour of a customer leads to a breach of contract, especially in the case of default, Bluebird-Balloons is entitled to the immediate return of the delivery item, and the customer is obliged to hand the delivery item over, after Bluebird-Balloons has rescinded from the contract. The customer is obliged to adequately insure the reserved goods against all usual risks, especially against fire, water and theft, to treat them with care and to store them. When third parties access the reserved goods, the customer has to point out our proprietary right, has to inform us in writing, and has to provide us with the documents that are necessary for an intervention. In this case the customer shall pay the costs of damages to the reserved goods, also if these are caused by third parties.
15.4 Until the complete payment of all our (also future) claims of the current business relationship with the customer, all goods remain the property of the provider Bluebird-Balloons. The customer may resell reserved goods only within the conduct of its business operations and exclusively with conveyance of the retention of title. This does also apply if we incorporated individual claims or all claims into a current account and the balance has been settled. When paying with a bill of exchange, the retention of title applies until the unconditional payment of the bill of exchange. In the case of any further sale the customer is obliged to sell further only the goods that have been delivered to it under retention of title with retention of title on its part, if the goods are not immediately paid by the third-party purchaser. Other provisions, especially pledging or chattel mortgaging, are not permitted. If the behaviour of the customer leads to a breach of contract, we are entitled to rescind from the contract and to demand that the goods be returned. The customer hereby cedes all claims, including securities and ancillary rights that accrue to the customer from or in connection with the further sale against the end user or against third parties, irrespective of whether the goods that have been delivered by us under reservation are resold before or after processing. The customer may make no agreements with its purchaser that could exclude or impair our rights in any way. The customer is especially not allowed to enter into agreements that undo the advance assignment of the claim to us. Counterclaims entitle the customer to set-off only if they are undisputed and if they have been acknowledged by us or legally determined. The customer is entitled to a right of retention only from claims from the same legal relationship and also only if they are undisputed, acknowledged by us or legally determined. The assignment of rights of the customer needs our explicit consent.

16. License Rights, Copyright, Author’s Rights, other Rights

16.1 All shown marks, logos and picture marks are the property of the respective owners. The presentation on our pages serves only for presentation purposes and does not assume that the shown marks are freely available and/or useable by third parties.
16.2 If material that is copyrighted or that is subject to other rights of third parties has been published unintentionally, or if there has been a violation of applicable law, we ask the owners of the rights to inform Bluebird-Balloons correspondingly. Bluebird-Balloons obliges itself to immediately delete the copyrighted material from its electronic archives if such a violation of law is discovered.
16.3 If necessary for the production of the performance object or on request of Bluebird-Balloons, the customer will unconditionally provide the provider Bluebird-Balloons with the data sets or other records that are necessary in any single case. If the customer orders Bluebird-Balloons to create/print a logo (or anything similar), it shall issue a legally binding declaration that it owns the rights, i.e. that it has the corresponding permission of the owner of the rights of the logo. The customer indemnifies Bluebird-Balloons from any and all claims of third parties with respect to the creation of the logo that was ordered by it.
16.4 The customer declares that it is the owner of any and all related rights and warrants that any and all incurring copyright fees or other fees will be paid to the responsible authorities, and that Bluebird-Balloons is in principle not to be held responsible in any way. The customer indemnifies the provider Bluebird-Balloons in this regard and in any direction, especially for any claim of third parties, including claims of copyright organisations and similar organisations as well as possible legal costs and court costs that may result from an alleged or actual violation of such rights. This indemnification also covers possibly open labour costs /production costs and other costs of the provider Bluebird-Balloons.
16.5 Bluebird-Balloons is not obliged to check the contents of the pictures/data/texts that the customer submitted/provided for correctness or possible license provisions.
16.6 If Bluebird-Balloons learns of violations of valid legal provisions, the material will be deleted and the execution of the order will be refused.
16.7 The customer agrees to the application of the Bluebird-Balloons logo at an inconspicuous spot on the objects that the customer ordered from Bluebird-Balloons.
16.8 The customer agrees to the use of its company logo through Bluebird-Balloons on the website of Bluebird-Balloons, for example in the section “References” or other advertising media such as flyers. Should the customer want to object to such use, an informal written objection to info@bluebirdballoons.com will suffice to safeguard its interests. Bluebird-Balloons will then promptly remove the corresponding company logo. Bluebird-Balloons may further, i.e. until they are used up, use print products that have already been created, such as flyers that contain the objected company logo.

17. Set-Off

A set-off of the customer is possible only if its claims for set-off are undisputed, have been acknowledged by us or have been legally determined.

18. Place of Performance, Place of Jurisdiction

Our place of business is agreed to be the place of performance and the place of jurisdiction for disputes of any kind, since the customer, according to our General Terms and Conditions, is in principle a merchant, a legal entity under public law or a special fund under public law. The law of the Federal Republic of Germany shall exclusively apply to any and also future contract conclusions between the customer and us. We explicitly exclude the Uniform UN sales law (CISG) and the Hague convention concerning the conclusion of purchase contracts.

Version as of: September 2016

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