These Conditions may only be varied with the written agreement of Smile Promotions Limited. No terms or conditions put forward at any time by the customer shall form any part of the Contract.
In these conditions:
• “The Purchaser” means the customer named in the PO
• “The Supplier” means Smile Promotions Limited (Smile Promotions)
• “The Goods” means any such goods as are to be supplied to the Supplier to the Purchaser by the Supplier.
• “The Contract” the contract between the Purchaser and Supplier for the sale and purchase of the Goods
Electronic, written or oral offers by Smile Promotions do not represent an offer in the legal sense and are merely a solicitation of an order from the customer. A contract only arises on written acknowledgement of the order by Smile Promotions, or at the latest on acceptance of the delivery by the customer. Smile Promotions offers and order acknowledgements are always subject to a positive credit report on the customer.
The customer is obliged to collaborate under the contract or in good faith, specifically in obtaining necessary permits and approvals. With regard to releases, see art. 8 below. Smile Promotions is entitled to set a reasonable period for the customer to collaborate. After fruitless expiration, Smile Promotions is entitled to withdraw from the contract. If the necessary licences or permits are not available by the latest after 3 months after entry into the contract, Smile Promotions is entitled to withdraw from the contract.
Delivery terms will be ex warehouse, unless otherwise agreed. For delivery from an external warehouse, freight exfactory is billed. Shipping is at the customer’s cost and risk. Risk passes to the customer at the latest on delivery ex works or shipment warehouse. This also applies if Smile Promotions agreed shipment free of freight. The goods are shipped uninsured unless otherwise agreed. The start of the delivery period specified by Smile Promotions is subject to clarification of all questions based on the customer’s collaboration obligations listed under (3) above. Stated delivery dates are nonbinding, unless Smile Promotions explicitly confirms in writing the binding nature of the stated delivery time. Time of delivery is shipment ex works or warehouse. If the goods are not shipped for reasons beyond Smile Promotions control, notification of readiness for shipment is decisive. The delivery period is interrupted for the time needed for the customer to check drawings, spec. samples, blueprints etc, from the date of shipment to the customer until the arrival of the customer’s statement. Smile Promotions compliance with its delivery obligation is subject to prompt and proper delivery by its own suppliers and further to the prompt and proper performance of the customer’s obligations. Defence of non-performance is reserved. Smile Promotions is entitled to make reasonable part delivery and invoicing. If the customer is in default on acceptance or culpably violates other collaboration obligations, Smile Promotions is entitled to demand damages for any loss suffered including any additional expense. Smile Promotions reserves all further rights. If the provisions of paragraph (3) are satisfied, the risk of accidental loss or deterioration of the object of purchase passes to the customer at the time when it fell into default or fault. Smile Promotions is further liable under statutory provisions if the default on delivery is due to a deliberate or grossly negligent contractual violation for which Smile Promotions is responsible; Smile Promotions is responsible for the fault of its agents or servants. If the default on delivery is not due to a contractual violation for which Smile Promotions is responsible, Smile Promotions’ liability for
damages is limited to the foreseeable and typical loss. Smile Promotions is further liable under statutory provisions if it is responsible for the default on delivery as a result of culpable violation of a material contractual obligation; in such event liability for damages is limited to the foreseeable and
typical loss.
Unless otherwise stated in the order acknowledgement, Smile Promotions prices are ex-warehouse and exclude packaging, shipment costs as well customs duties. Any bank charges for foreign
transfers are borne by the customer. Smile Promotions prices do not include VAT, which is shown separately in the invoice at the rate prevailing on the invoice date.
Unless otherwise stated in the order acknowledgement, the purchase price is due net (without discount) within 15 days of the invoice date. The statutory regulations apply to the consequences of default on payment. Retention or offsetting due to any counterclaims of the customer is only permitted if the counterclaims are legally enforceable or uncontested by Smile Promotions Limited.
Smile Promotions Limited retains title in the object of purchase pending receipt of all payments under the delivery contract. In the event of contractual violation by the customer, and specifically default on payment, Smile Promotions is entitled to demand the return of the object of purchase. Repossession by Smile Promotions of the object of purchase constitutes withdrawal from the contract. After repossession of the object of purchase Smile Promotions is entitled to dispose of its otherwise; the proceeds must be offset against the customer’s liabilities, less reasonable costs of disposal. The customer is obliged to treat the object of purchase with care, and specifically to insure it adequately at its own cost against fire, water damage and theft. In the event of distraint or other intervention by third parties, the customer must notify Smile Promotions in writing without delay so that Smile Promotions can file a claim accordingly. If the third party is not able to reimburse Smile
Promotions for the court and other costs of a claim, the customer is liable for the resulting loss to Smile Promotions. The customer is entitled to sell the object of purchase in the course of normal business; however, the customer herewith assigns to Smile Promotions all claims in the amount of the final invoice amount (including VAT) against the customer’s customer or third parties arising to the customer out of the resale, regardless of whether the object of purchase is sole without or after processing. The customer is entitled to collect this claim even after assignment. This does not affect Smile Promotions authority to collect the claim itself. However, Smile Promotions undertakes not to
collect the claim if the customer meets its payment obligations from the proceeds received, does not fall into default on payment, and specifically if no application for the opening of composition or insolvency proceedings is opened or the customer ceases payments. In such event, however, Smile Promotions can demand that the customer notify Smile Promotions of the assigned claims and the debtors, provides all information necessary for collection, supplies the associated documents, and notifies the debtors (third parties) of the assignment. Processing or transformation of the object of sale by the customer is always done on behalf of Smile Promotions. If the object of purchase is processed together with other objects not the property of Smile Promotions, Smile Promotions acquires joint title in the new object in the ratio of the value of the object of purchase (final invoice amount including VAT) to the other processed objects at the time of processing. The same provisions apply to the object resulting from the processing as to the object of sale delivered subject to retention. If the object of purchase is inseparably mingled with other objects not the property of Smile Promotions, Smile Promotions acquires joint title in the new object in the ratio of the value of the object of purchase (final invoice amount including VAT) to the other mingled objects at the time of processing. If the mingling is such that the customer’s object qualifies as the primary object, it is agreed that the customer transfers prorated joint title to Smile Promotions. The customer maintains the resulting sole or joint title for Smile Promotions. The customer further by way of security for Smile Promotions claims against the customer assigns to Smile Promotions its own claims against third parties arising out of the connection of the object of purchase with a piece of real property. Smile Promotions undertakes to release the security due to Smile Promotions at the customer’s request to the extent that the achievable value of Smile Promotions security exceeds the claims to be secured by more than 10%; Smile Promotions has the right to select the security to be released.
For orders for custom designs all information on finish, dimensions etc must be confirmed in writing. Unless otherwise agreed, Smile Promotions retains the right to draw up internal development contracts based on documentation of any kind. Minor differences in subsequent contracts may be required by production considerations and are accepted by the customer. Duplication, copying or transmission of drawings, samples or documentation created by Smile Promotions are only permissible with Smile Promotions explicit agreement, In the case of production to sample, drawing or data provided by the ordering party, the latter is liable for violation of third party copyright and statutes which Smile Promotions cannot be aware of. Samples, photos, assemblies or drafts required by the ordering party are at the latter’s expense. Production release must be given without delay. Otherwise the agreed delivery time is extended accordingly. Production of the article in question cannot proceed without written release. The customer agrees to the release of digital images. On release for production the risk for any defects passes to the ordering party, unless major defects are involved which Smile Promotions was able to identify or which only emerged in subsequent production at the plant. Smile Promotions reserves the right to make and invoice over or under deliveries for production reasons on the usual scale for the industry of up to 10%. The customer has no rights and claims in tools or development models, even if it contributes to the costs. Smile Promotions is entitled to demand the return of these within 14 days. In the event of failure to return
development models, the parts provided will be invoiced at cost to Smile Promotions. Agreement to show images of custom designs is a prerequisite and does not require additional approval. No liability is assumed for the loss of films or other documentation.
Returns are only accepted subject to testing and approval by Smile Promotions. Acceptance of a return shipment does not under any circumstances constitute acknowledgement of a defect or other complaint by the customer. Return and any accidental loss are always at the customer’s risk. For returns for which the customer is responsible, and specifically (but not exclusively) in the event of refusal to accept deliveries, Smile Promotions will charge a fee for return to inventory. Goods delivered by Smile Promotions are not taken back for credit unless Smile Promotions written agreement has been obtained in advance, the goods delivered are standardised warehouse stock and can be used elsewhere. The amount to be credited is calculated based on valuation of the goods returned less the cost of handling the order and the return and any costs incurred in repairing same. Calculation of the amount of the credit is based on valuation of the items taken back, less the costs resulting from the order and processing the return shipment and any expense on repairs. A credit cannot exceed the price at the time of the return. If the invoiced price is lower, this is taken as the maximum amount. In the event of accepted returns the customer must pay 30% of the price at the time of return for return to inventory. This is also deducted from the credit.
Assignment of any claims by the customer against Smile Promotions from the relationship requires written approval by Smile Promotions to be valid; Smile Promotions may not unreasonably refuse such approval if the customer’s interest is justified.
Obvious defects must be notified to Smile Promotions in writing within 7 days of delivery of the goods. Claims by the customer for defects require that the customer has properly discharged its obligations to examine and report defects. If there is a defect in the object of purchase Smile Promotions may opt between subsequent performance by correcting the defect or supplying a new item free from defect. If Smile Promotions opts to correct the defect, Smile Promotions bears the costs only up to half the purchase price. If subsequent performance is without effect the customer has the option of withdrawing from the contract or requiring a reduction. Correction of the defect is only held to have failed after an unsuccessful second attempt. If the review of a defect report shows that no defect is present, Smile Promotions is entitled to bill the customer a flat rate charge for processing. This does not affect the customer’s right to prove that Smile Promotions incurred less
expense than billed. Rights arising out of defects lapse in 12 months from the date of transfer of risk. Processing a defect report by Smile Promotions does not constitute acknowledgement of the defect. Processing a defect report only delays the lapse if the statutory provisions for this are satisfied. It does not reset the period for notification. This also applies if Smile Promotions responds to a customer defect report by subsequent performance (attempt to correct the defect or replacement). An attempt to correct the defect can only affect the reporting period for the defect leading to the attempt and any new defects arising out of the attempt. If the goods are consumables this does not affect the rights of the customer, provided that the customer has met the examination and complaint obligations.
Smile Promotions is liable under statutory provisions if the customer claims for damages based on intent or gross negligence, including intent or gross negligence on the part of Smile Promotions agents or servants. If Smile Promotions is not held liable for deliberate breach of contract, damages are limited to the foreseeable and typical loss. Smile Promotions is liable under statutory provisions if Smile Promotions culpably violates a material contractual obligation, in which case liability for damages is limited to the foreseeable and typical loss. If the customer has a claim to damages instead of performance, Smile Promotions liability is limited to compensation for the foreseeable and typical loss. This does not affect liability for culpable injury to life, limb or health, or to strict liability under the Product Liability Act. Unless otherwise provided above, liability is excluded. If delivery is impossible the customer is entitled to demand damages under the statutory provisions. However, the customer’s claim is limited for damages together with or instead of performance and to reimbursement of fruitless expenditure to 10% of the value of that part of the delivery which cannot be used because of impossibility. Further claims by the customer for the impossibility of the delivery are excluded. This restriction does not apply to cases of intent, gross negligence or injury to life, limb or health. This does not affect the customer’s right to withdraw from the contract. The above provisions do not involve any change in the burden of proof to the customer’s disadvantage.
If failure to meet deadlines is due to force majeure, e.g. mobilisation, war, civil unrest or similar events, e.g. strikes or lockouts, the deadlines are extended appropriately.
Smile Promotions notes that the data required to process the contract are stored.
The heading to Conditions shall not affect their interpretation.
The contract is governed exclusively by the right of the English Law. Amendments and additions to the contract and ancillary agreements must be in writing. This applies also and specifically to the waiver or amendment of this written form clause. If written form is required, fax transmission is also sufficient.