of 123 Plakat.de Busse & Finkemeier GbR

1. General Information

(1) The following General Terms and Conditions shall apply to all deliveries and other services of 123Plakat.de Busse & Finkemeier GbR, Alter Postweg 62, D-32257 Bünde, Germany, (hereinafter referred to as “123Plakat.de”) that are provided by 123Plakat.de to its customers and all contracts between 123Plakat.de and its customers. The applicable version of the General Terms and Conditions is the one that is in effect at the time when the order is placed.

(2) We hereby object to any conflicting provisions our customers may have. 123Plakat.de will only recognize conflicting provisions if they have been agreed to expressly and in writing. All collateral agreements must be confirmed in writing.

(3) The business relations between 123Plakat.de and its customers shall be governed by the law of the Federal Republic of Germany; the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. If the client is a merchant (as defined by the German Civil Code) or a legal entity under public law or of special funds under public law, the place of jurisdiction shall be Bünde.

(4) We recommend that our customers print all transaction data as well as the General Terms and Conditions (AGB) when placing an order.

 

2. Order Confirmation and Conclusion of the Contract

(1) On the website www.123plakat.de, 123Plakat.de offers its customers the opportunity to design their own poster(s) for their own poster advertising campaign and to book the advertising locations where they would like to post them.

123Plakat.de unites all process steps (3 steps) required for a poster advertising campaign (designing a motif, selecting the location, registering and confirming the booking).

(Step 1)        Designing a Motif  – The customer designs the poster himself with a simple design tool. The finished motif is sent to a print shop automatically, over the internet. The print ship receives its print order from 123plakat.de and prints the poster. 123plakat.de organizes the shipping and the print shop ships the poster to the poster installation company.

(Step 2)        Selecting the Location  – The customer uses the 123plakat.de poster space selection tool to select the locations where he wants to have the posters displayed. Currently the tool contains about 180,000 billboards all over Germany, including their exact location (zip code, city, street/designation). Most listings include a photo. With this tool the customer can choose any of the places where advertising locations are available, can look at the billboards and can book them online for his preferred dates (if available).

(Step 3)        Registering and Confirming the Booking – The customer enters his data and places a binding order for printing the posters and for booking the selected advertising medium locations.
The customer may also order additional posters – beyond the ones he needs for his advertising project – and may order the poster motif on a hollow DIN A1 size panel (hereinafter referred to as “additional posters” and/or “small formats“).

(2) The contract regarding the order of the poster advertising project (for printing the poster(s) and selecting the advertising locations) and the order of any additional posters and/or small formats is only formed when 123Plakat.de sends an order confirmation. 123Plakat.de will send this order confirmation to the e-mail address provided by the customer after processing the order. The fact that the customer sends data from the 123Plakat.de website to 123Plakat.de (order) does not establish a contract.

(3) 123Plakat.de reserves the right to reject orders if processing the order would infringe upon the rights of third parties or would violate any laws. In those cases, 123Plakat.de will notify the customer that the order has been rejected by e-mail.

 

3. Return and Cancellation Rights for Distance Selling Contracts

(1) If the purchasing party in a distance selling contract is a consumer, he may return the received merchandise within two weeks by shipping it back, without stating any reasons.  

(2) The return period shall start at the earliest when the merchandise and this instruction are received. Only for goods that can’t be shipped as a package (e.g. bulky goods), the return may also be made by sending a written declaration demanding that the seller take back the merchandise, which can be done in a regular letter, a fax, or an e-mail, for example. To make a return within the permitted return period, the customer must send the goods or the demand letter within that period. In any case, 123Plakat.de will bear the costs and the risk of the return shipment. The goods must be shipped/the demand letter must be sent to: 123Plakat.de Busse & Finkemeier, Alter Postweg 62, 32257 Bünde.

(3) The right to return merchandise does not apply to merchandise that is manufactured according to the customer’s specifications or that is clearly adapted to the customer's personal requirements, or to merchandise that is not suitable for a return due to its nature.

(4) If the merchandise is returned effectively, both parties must return the received performances and must surrender any derived benefits (e.g. benefits from use). If the goods are in a deteriorated condition, 123Plakat.de may demand a reimbursement of the lost value. This does not apply if the deterioration is only due to an examination of the merchandise – as it would have been possible in a store, for example. Another way for the customer to avoid the obligation to reimburse 123Plakat.de for the lost value is to not use the merchandise like an owner of the merchandise and not to do anything that may diminish the value of the merchandise.

(5) The cancellation right pursuant to § 355 BGB (German Civil Code) lapses once 123Plakat.de starts to perform on the basis of the customer’s express consent before the end of the cancellation period.
For non-merchants, the cancellation right lapses ahead of time once both sides have fully performed on the contract on the basis of the customer’s express request before the customer has exercised his cancellation right.

 

4. Content of Customer-Designed Posters, Infringement of Third-Party Rights

(1) The only party responsible for the content of the customer-designed posters (e.g. the texts created by the customer or submitted images and or graphics) is the customer himself.

(2) For all data/files submitted to 123Plakat.de that are used for printing the posters and/or the small formats, 123Plakat.de assumes that the customer is the owner of all required copyrights, trademark rights or other rights. 123Plakat.de will not verify this information. 123Plakat.de stresses that third parties may assert a claim for significant damages against the customer if the content violates any copyrights. This also applies to photos that show people in an identifiable manner. For those photos, the customer must obtain the consent of the concerned persons that he may include their image on his poster and he may be asked to provide proof of such consent. The customer shall be liable for all costs and claims arising from a violation of the above mentioned rights and he shall release 123Plakat.de from any liability against third parties.

(3) By placing the order, the customer guarantees that the content of the submitted image files does not violate criminal law, and particularly does not violate the provisions regarding the distribution of child pornography (§ 184 StGB – German Penal Code). 123Plakat.de reserves the right to report any violation of this guarantee to the authorities immediately.

(4) By placing the order, the customer allows 123Plakat.de to use a space of about 14 cm (about 5.5”) above the customer’s poster motif for self-marketing (about 356 cm wide x 14 cm high, which equals about 140.1” wide x 5.5” high). This will reduce the space that is available for the customer’s advertising to about 356 cm (wide) x 238 cm (high), which equals about 140.1” (wide) x 93.7” (high). The customer may not assert a claim to reduce the rental, print, or total price because of this.

 

5. Prices, Handling the Project/ Delivery, Payment

(1) The prices charged for handling the poster advertising project and/or the delivery of the additional posters and/or small formats are those that are in effect when the order is placed, which are listed on the www.123plakat.de website. The prices include the costs of producing and shipping the posters (there is a different agreement if the customer produces and ships the posters himself – see paragraph 9) as well as the costs of renting the advertising locations and installing and removing the posters at the advertising locations (location costs). Any costs of contractual rights or rights of use that arise from using images and/or graphics submitted by the customer in the posters are not included in these prices and shall be born by the customer additionally (see also § 4). The prices include the value added tax at the then applicable rate (currently 19%).

(2) The payment of the full amount requested by 123Plakat.de in the confirmation of the order is a precondition for handling the poster project. The purchase price shall be paid immediately after the order confirmation has been sent, either by bank debit memo (Banklastschrift) or by direct debit (Bankeinzug). The following deadlines apply:

•  A 20% advance payment for orders that are placed more than 65 days before the start of the posting
•  An advance payment of another 50%  for the period of 65-21 days before the start of the posting
•  A final payment amounting to 30%  21 days before the start of the posting

If there are less than 65 days between the day when the order is placed and the day when the posters are installed, the initial advance payment and the second advance payment will be charged at the same time.

The customer will make the necessary information available to 123Plakat.de in the form that is provided for this purpose (see also § 10 Privacy Policy and/or the separate privacy policy information).

(3) If a bank debit memo is returned, the customer shall be obligated to reimburse the entire amount of the incurred bank fees. 123Plakat.de will pass on any incurred bank fees to the customer.

(4) The additional posters and/or the small formats will be delivered to the address provided by the customer unless expressly otherwise agreed. 123Plakat.de reserves the right to make a partial delivery if it seems that the order can be handled more quickly that way. The customer shall be responsible for additional costs arising for special shipping arrangements requested by him.

(5) 123Plakat.de will ship the additional posters and/or the small formats as soon as possible after the payment has been received. Any delivery dates stated by 123Plakat.de are not binding unless 123Plakat.de committed to these delivery dates in writing or by e-mail as an exception. A late delivery by 123Plakat.de shall not entitle the customer to claim damages unless 123Plakat.de caused the delay intentionally or through gross negligence. This shall not affect the customer’s right to withdraw from the contract.

(6) In case of default of payment or deferral, 123Plakat.de will charge interests and possible collections fees. The minimum interest rate amounts to 5% above the base rate set by the European Central Bank (ECB).

(7) In case of reasonable doubts as to the solvency of the customer, 1-2-3-Plakat.de is entitled, even during the term of the order, to make the performance of further posters contingent upon the advance payment of the amount and the payment of outstanding invoice amounts irrespective of any originally stipulated term of payment. This does not entitle the customer to any claims against 1-2-3-Plakat.de.

(8) If 123plakat.de does not execute an order because the customer does not comply with the agreed payment terms, this will not release the customer from his obligation to pay. 123plakat.de will offset any unincurred expenses.

(9)  If the customer does not order the posters for the poster advertising project from 123Plakat.de, he himself will be responsible for delivering them to the poster installation company on time (self-production and shipping). In this case, 123Plakat.de will include a shipping list with the order confirmation it sends to the customer, which contains the individual batch volumes to be sent, the shipping addresses of the poster installation companies and the latest possible delivery date for the posters. The customer will be responsible for all costs related to the self-production and shipping (costs of producing the posters, shipping costs, etc.). The customer will also be responsible for ensuring that the posters meet the requirements for installing them using a wet gluing process. The production, handling, and collating guidelines are available for downloading on the 123Plakat.de website. The customer alone will be liable for any loss or damages resulting from a late delivery of the posters or posters that are produced and/or collated incorrectly.

6. Retention of Proprietary Rights, Offset

(1) Up to the performance of all claims stipulated in the contract, the property of the delivered goods belongs to 1-2-3-Plakat.de. If the customer represents a public-law entity, public special fund, or a trader in the course of exercising his or her commercial or self-employed work, this furthermore applies as a result of the current business relationship until all claims that 1-2-3-Plakat.de is entitled to within the context of the contract are settled.

(2) The customer is only granted the right of set-off, if 1-2-3-Plakat.de admits the customer's counterclaims or if these claims have been recognized by declaratory judgement. The customer is entitled to refer to his or her right to retention only to the extent that this counterclaim is based on the same contractual relationship.

 

7. Warranty for defects

(1) The customer shall be bound to individually check graphic input he or she provides online. 1-2-3-Plakat.de will not check the posters. Possible colour variations between screen colours and the final printing result are due to technical reasons and do not represent a reason for rejection.

(2) By sending his print data to 123Plakat.de, the customer releases these print data for printing. The customer waives any right to additional releases for printing and/or to receive a proof. By placing the order, all risks resulting from possible errors shall be transferred to the customer, unless those errors only arise during the production process which follows the release for printing. The same shall apply to all other customer releases for further production and/or for shipping. Any notice of defects must be asserted in writing without undue delay, at the latest one week after the defects were discovered, and must be specified in detail. For colored reproductions, minor deviations from the original, particularly color variations between the individual sheets of multi-part posters shall be accepted and shall not constitute grounds for a complaint..

(3) Claims for compensation due to non-compliant performance of the poster advertising project must be asserted during the agreed term and must be supported by proof (e.g. photos). If the contract only involves merchants, the provisions of §§ 377 ff. HGB (German Commercial Code) shall apply complementarily.

(4) If there are any defects and they were asserted in a timely manner, 123Plakat.de shall have the right to cure the defect. In the event of justified complaints, 123Plakat.de will only reimburse the amounts paid by the customer. In addition, the warranty is governed by applicable statutory provisions.

(5) The poster installation companies require a number of spare posters, amounting to 10% of the run (rounded up to whole posters, plus at least one spare poster per poster storage location), to carry out the poster project. Spare posters are necessary because the posters can be damaged when they are prepared for gluing, when they are installed or during the posting period. If the customer orders the poster run without any spare posters, 123Plakat.de will only recognize complaints related to damaged posters or lost postings, etc. if the poster damage or loss etc. could not have been remedied by installing spare posters. Accordingly, 123Plakat.de will only compensate and/or reimburse costs related to damaged posters, lost postings, etc. if the customer orders or delivers the required poster run with the spare posters.

(6) With regard to lost postings for which 123Plakat.de is responsible, it will only reimburse the customer for the period in which the advertising was not posted. The customer agrees that in the case of a short-term loss of an advertising location (e.g. due to being obstructed by parked cars, construction sites, other obstructions, etc.), the poster will be installed on an equivalent billboard. 123Plakat.de will only provide compensation if the customer proves that the alternative location was not equivalent to the one that was originally requested. 123Plakat.de will inform the customer of any losses and/or changes.

(7) Any compensation will be limited to the (if applicable, pro-rata) location cost. Compensation for the production and shipping costs of the posters can only be provided if the posters were not installed. If 123Plakat.de proves that the lost posting was due to special circumstances related to the planned installation (e.g. construction sites, obstruction by parked vehicles or other obstructions of the advertising locations that rendered the installation impossible) and that the normal installation preparations (e.g. soaking the posters) make it impossible to reuse the posters (e.g. if the poster parts stick together), the customer shall not have a claim for compensation of the production and shipping costs unless the customer proves that 123Plakat.de should have known about those special circumstances and could have made appropriate provisions. The customer also shall not have a claim for compensation of the production and shipping costs if 123Plakat.de returns any posters that were not installed to the customer unless they involve a specific deadline and have no value once the deadline that is listed on the poster has passed.

(8) The fact that individual advertising locations become unavailable shall not entitle the customer to cancel the entire advertising project.

(9) A non-performance, interruption or premature termination as well as a reduction in the format or the number of posting locations that is due to official regulations or other reasons for which 123Plakat.de is not responsible shall remain unaffected. In these cases, the customer shall be informed without undue delay. This shall not constitute grounds for compensation claims.

(10) Additional posters and/or small formats are considered defective if they don’t meet the technical standards of digital poster printing. Minor defects shall not give rise to warranty claims by the customer. Only technical errors that could have been avoided based on the current state of the art of the technology may be considered 'defects', but matters of taste shall not be considered defects. Differences in color, cropping, or color shifts between the additional posters and/or small formats and the original data do not constitute ‚defects’. A loss of quality that is due to a defective quality of the original image data (e.g. resolution) also shall not constitute a ‘defect’.

 

8. Important Note Regarding Transportation Damages

(1) Any visible (external) damage to a shipment must be certified by the person who delivers the shipment immediately and in an appropriate manner. The shipping companies are obligated to issue such certifications.

(2) If there is any damage, defect, or weight reduction of the content that could not be detected from the outside, stop unpacking the content as soon as you notice the damage, defect, or weight reduction. Immediately notify the shipping company of its liability in writing and ask it to establish the damage.

(3) In all cases, the goods and the packaging must be kept in the condition in which they were when the damage was discovered until a representative of the shipping company records the facts.

 

9. Liability Disclaimer / Limitation of Liability

(1) 123Plakat.de tries to keep the www.123plakat.de website operable at all times. But 123Plakat.de will not assume any liability for damage and errors arising to a customer due to a temporary unavailability of the website or due to other technical problems (this particularly applies to orders that are not received by 123Plakat.de). 123Plakat.de also shall not be liable for a loss of or damage to image files when data media are sent by the customer through regular mail or if the files are sent through electronic data transfer.

(2) 123Plakat.de shall be liable for a breach of duty by 123Plakat.de or by its representatives or agents. Any liability of 123.Plakat.de shall be limited to intentional or grossly negligent acts unless the breach is a breach of essential contractual obligations. In this case, 123Plakat.de shall only be liable for typical and foreseeable damage, and the liability in an individual case shall be limited to the reimbursement of the amounts paid by the customer for the poster advertising project and/or additional posters and/or small formats. Any further liabilty is excluded.

(3) The provisions in paragraphs 1 and 2 shall not affect the liability of 123Plakat.de based on harm to life, body and health and any liability pursuant to the Product Liability Act.

(4) 123Plakat.de shall not be liable for poster losses, damage to posters, etc. that are caused by third parties (e.g. if the poster is damaged or something is pasted over or painted on the poster). It is the customer’s responsibility to assert claims for damages resulting from such incidents against the party that caused the damage.

 

10. Privacy Policy, Saving the Image Files

(1) The customer knows and agrees to the fact that 123Plakat.de stores the personal data that are required for processing the order on data storage media. The customer expressly agrees to the collection, processing and use of his personal data. Naturally, 123Plakat.de will treat the stored personal data as confidential. The customer’s personal data will be collected, processed and used in accordance with the provisions of the German Federal Data Protection Act (BDSG), the German Data Protection Act for Telecommunication Services (TDDSG) and the privacy policy.

(2) The customer shall have the right to revoke his consent at any time with effect for the future. In that case, 123Plakat.de shall be obligated to delete all personal information of the customer immediately. If there are any open orders, the data will be deleted once that order has been completed.

(3) The customer knows and agrees to the fact that his poster motif will be published in an image gallery on the 123Plakat.de website, free of charge.

11. Place of Jurisdiction

The registered office of 123Plakat.de shall be the place of jurisdiction
- in business transactions with companies and entities under public law;
- if the debtor has moved his domicile or habitual place of residence abroad after the conclusion of the contract or if his residence is not known when the action is filed.

(Version of 08-19-2009)