Terms & Conditions
allbranded North America Inc.
2980 McFarlane Rd, Miami, FL 33133, United States
Director: Arne Schubert
T (786) 550-8068
United States of America
General Terms and Conditions of allbranded North America Inc. (hereinafter referred to as the “Agreement”)
a. All deliveries, services and offers of allbranded North America Inc. (hereinafter referred to as “allbranded”) shall be conducted exclusively on the basis of these general terms and conditions. These shall form an integral part of all contracts entered into between allbranded and their contractual partners (hereinafter also referred to as the “client” or “buyer”) regarding all deliveries and services offered by allbranded. They shall also apply to all future deliveries, services or offers to the client, even if not separately agreed again. They shall only apply, as far as the client is an entrepreneur, a legal entity under public law or a special fund under public law.
b. The terms and conditions of the client or third parties shall not apply, even if allbranded fails to explicitly object towards their applicability in individual cases. Even if allbranded should refer to a letter containing or referring to the terms and conditions of the client or a third party, this shall not confirm acceptance of the applicability of such terms and conditions.
2. Offer and finalization of contract
a. All offers made by allbranded shall be subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. allbranded may accept orders or commissions within fourteen days of receipt. When ordering via the Internet, a contract is concluded between the client and allbranded upon allbranded accepting the order. This is facilitated by sending an order confirmation via e-mail or by sending the goods. Generally, the sending of an order confirmation is not a declaration of acceptance on behalf of allbranded, but serves exclusively to confirm receipt of the customer's order.
b. The written sales contract, including these general terms and conditions, shall be decisive for the legal relationship between allbranded and the client. This fully reflects all agreements between the contracting parties on the subject of the contract. Verbal promises made prior to the conclusion of this contract shall not be legally binding and any verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that these shall continue to apply.
c. Any additions and changes to the agreements made, including these general terms and conditions, must be made in writing to be effective. With the exception of managing directors or authorized signatories, allbranded’s employees shall not be entitled to conclude verbal agreements deviating from this. Telecommunication transmission, in particular by fax or e-mail, shall be sufficient to maintain the written form, provided a copy of the signed declaration is transmitted.
d. Any information provided by allbranded on the subject of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data), as well as any representations of the same (e.g. drawings and images) shall only be approximately relevant, unless the usability for the contractually intended purpose requires an exact conformity. They
shall not be interpreted as guaranteed characteristics, but rather descriptions or characterizations of the delivery or service. Customary deviations, any deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts shall be permissible, provided they do not impair the usability for the contractually intended purpose.
3. Prices and payment
a. The prices apply to the scope of services and delivery extent listed in the respective order confirmations. Additional or special services will be charged separately. The prices are in United States Dollars and exclude packaging, sales tax, customs duties (where applicable) and other public charges.
b. Insofar as delivery to the buyer is to take place more than four months after the conclusion of the respective contract, allbranded’s list prices valid at the time of delivery shall apply as the purchase price of the agreement (less any previously agreed to percentage or fixed discount respectively).
c. The delivery of the goods shall be executed against prepayment, unless a different payment method is expressly agreed upon between the contracting parties. In the case of payment on account, invoice amounts are to be paid within fourteen (14) days without any deduction, unless agreed otherwise in writing. The date of receipt by allbranded shall be decisive for the date of payment. Checks will only be considered as payment after they have been cashed. Should the client fail to pay by the due date, interest shall be charged at five percent (5%) per annum for the outstanding amounts as of the due date; the assertion of higher interest and further damages in the event of default shall not be affected.
d. Offsetting against counterclaims by the client or withholding payments due to such claims shall only be permitted, as far as the counterclaims are undisputed or have been legally established.
e. allbranded shall be entitled to carry out or provide outstanding deliveries or services only against advance payment or provision of a security, should it become aware of circumstances following the conclusion of the contract, which are likely to significantly reduce the creditworthiness of the customer and through which the payment of open claims against the client by allbranded as per the respective contractual relationship (including other individual orders, to which the same framework agreement applies) would be at risk.
4. Delivery and delivery time, declaration of readiness for printing
a. Deliveries shall be ex works.
b. Deadlines and dates for deliveries and services stipulated by allbranded are approximates, unless a fixed deadline or date has been expressly guaranteed or agreed upon.
c. allbranded may - without waiving any other provisions within this agreement - demand an extension of delivery and service deadlines or a postponement of delivery and service dates from the customer, namely in such cases as the customer fails to fulfil their contractual obligations towards allbranded.
d. allbranded shall not be liable for deliveries being impossible or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time of concluding the contract, including but not limited to, operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, legal lockouts, shortages of workers, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or a lack of the same, and incorrect or late delivery by suppliers for which allbranded is not responsible. If such events make the delivery or service significantly more difficult or impossible for allbranded and the hindrance is not just of a temporary nature, allbranded shall be entitled to withdraw from the contract. In the case of temporary obstacles, the delivery or service deadlines are to be extended or the delivery or service dates are to be postponed by the duration of such hindrance plus an appropriate start-up period. If the customer cannot be expected to accept the delivery or service as a result of the delay, they may withdraw from the contract by means of submitting a written notice to allbranded within ten (10) days of receipt of notice by allbranded of the existence of hindrance.
e. allbranded shall be entitled to facilitate partial deliveries and partial services at any time.
f. Excess or short deliveries up to ten percent (10%) of the ordered goods shall be permitted. In the case of excess or short deliveries, the customer shall only owe the purchase price for the quantity of goods actually delivered, as long as the excess or short delivery reported in writing to allbranded within three (3) days of receipt. Excess or short deliveries are customary in the industry and do not qualify for a refusal of acceptance or withdrawal from the contract.
g. Should allbranded be behind schedule regarding a delivery or service, or should a delivery or service become impossible for whatever reason, allbranded's liability shall be limited to compensation in accordance with section 7 of these general terms and conditions of delivery.
h. Before producing the actual work, the client is sent a print sketch also containing accessories for the respective goods. They must within ten (10) dayscheck that the print sketch is in accordance with the contract and, if it is in accordance with the contract, approve the print sketch by written notice to allbranded. This shall serve as declaration of readiness for printing. The approval also relates to the accessories contained in the print sketch. The liability of any printing errors, which may be traced back to a faulty print sketch, is then transferred to the client upon approval. This does not apply to printing errors, which arise or may only be recognized during the production process following the respective approval.
5. Shipping, packaging, passing of risk, acceptance
a. The shipping method and packaging shall be at the discretion of allbranded, unless otherwise specified in writing between the parties. The client shall bear the respective shipping costs.
b. The risk of accidental destruction, accidental damage or accidental loss of the delivered goods shall be transferred to the customer upon handover of the delivery item (whereby the beginning of the loading process shall be decisive) to the forwarding agent, carrier, or any other third party appointed with carrying out the shipment at the latest. This also applies to partial deliveries or in the case of allbranded having taken on other services (e.g. shipping or installation). Should the dispatch or the handover be delayed due to a circumstance, for which the customer is at fault, the
risk shall pass to the customer as of the day on which the delivery item is ready for dispatch and allbranded notifies the customer of the same. In this case, such liabilities may include storage.
c. allbranded shall only be responsible for the timely, proper delivery of the goods to the transport company and shall not be responsible for delays caused by the transport company. Any shipping times specified by allbranded shall therefore be non-binding.
d. The customer shall bear any storage costs following the transfer of risk. In case of storage being facilitated by allbranded, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per week. allbranded reserves the right to assert and provide evidence regarding additional or lower storage costs.
e. allbranded will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the client and at their own expense.
f. Insofar as an acceptance is to be facilitated, the purchased items shall be considered as having been accepted if:
the delivery has been completed,
allbranded has communicated this to the client with reference to the deemed acceptance according to this section 5 and has requested them to accept accordingly, twelve working days have passed since delivery or the client has started using the purchased item and, in this case, six working days have passed since delivery and the client has failed to accept the goods within this period for a reason other than a defect indicated by allbranded, making the use of the purchased items impossible or significantly impairing the same.
6. Guarantee, material defects
a. The warranty period shall be one year from delivery of the goods or, if acceptance is required, as of the date of the acceptance.
b. The delivered items must be carefully examined immediately after delivery to the customer or to a third party as appointed by them. With regard to obvious defects or other defects, which would have been recognizable by means of an immediate, careful examination, these shall be considered as having been approved by the client if allbranded does not receive a written notice of defect within seven (7) business days of delivery. With regard to other defects, the delivery items are deemed to have been approved by the customer, if a notification of defect is not received by allbranded within seven (7) business days after the point in time at which the defect became apparent; if the defect was already recognizable to the customer at an earlier point in time during normal use, this earlier point in time shall be decisive for the start date of the notice period. At the request of allbranded, any rejected delivery items are to be returned to allbranded carriage paid Should the respective complaint be justified, allbranded shall reimburse the cost of the cheapest shipping route; this does not apply, should the costs increase as a result of the delivery items being at a location other than the location of its intended use.
c. In the event of material defects regarding the delivered items, allbranded shall initially be obliged and entitled to either repair or replace the item at their choice and within a reasonable time period. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the client may withdraw from the contract or reduce the purchase price appropriately.
d. If a defect is at the fault of allbranded, the client may claim damages in accordance with the terms specified in section 7.
e. In the event of defects in components from other manufacturers that allbranded cannot eliminate for licensing or factual reasons, allbranded will, at their choice, assert their warranty claims against the manufacturer and supplier for the account of the client or assign them to the client where permissable. As per the respective other conditions and in accordance with these general terms and conditions, warranty claims against allbranded shall only exist in the event of such defects, as far as the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the client against allbranded shall be suspended.
f. The guarantee does not apply, if the customer amends the delivery items without allbranded’s consent, or if they have them changed by a third party and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client shall bear the additional costs of remedying defects resulting from such changes.
g. The delivery of used items as agreed with the client in individual cases shall take place under the exclusion of warranty for material defects.
7. Liability for damages due to negligence
a. allbranded's liability for damages, regardless of the respective legal reason, and in particular for reasons of impossibility, delay, false or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, shall be limited, insofar as it depends on being at fault, namely in accordance with this section 7.
b. allbranded shall not be liable in the event of simple negligence on the part of its legal representatives, employees or other agents, unless it is in relation to a breach of essential contractual obligations. Essential to the contract shall be the obligation to deliver the delivery item on time, the item being free from any defects which would significantly affect its functionality or usability, as well as advisory, protection and custody obligations intended to enable the customer to use the delivery item in accordance with the contract or to protect the body or the life of the client's staff or the protection of their property from significant damage.
c. allbranded's liability for delay in delivery shall be limited to the amount of 10% of the respective purchase price (including value added tax), except in the case of willful intent or gross negligence.
d. As far as allbranded shall be liable for damages based on the above in accordance with figure 7 for reasons other than those listed in paragraph h., allbranded’s liability shall be limited to damages which allbranded foresaw as a possible consequence of a breach of contract upon conclusion of the contract. Indirect damages and consequential damages resulting from defects in the delivery item shall also only be eligible for compensation, if such damages are typically to be expected when using the delivery item as intended.
e. In the case of liability for reasons of simple negligence, allbranded's obligation to pay compensation for property damage and further financial losses resulting therefrom shall be limited
to an amount of USD $250,000.00 per case of damage, even if it is in relation to a breach of essential contractual obligations.
f. The above exclusions and limitations of liability shall apply to the same extent in favor of allbranded’s bodies, legal representatives, employees and other agents.
g. As far as allbranded provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed and owed scope of services, this is done free of charge whilst excluding all liability.
h. The restrictions of this section 7 do not apply to allbranded’s liability in relation to willful behavior, guaranteed characteristics, injury to life, limb or health or according to product liability laws.
8. Reservation of proprietary rights
a. The reservation of proprietary rights as agreed below serves to secure all existing current and future claims of allbranded against the buyer in relation to the supply relationship between the contractual partners (including balance claims relating to current accounts limited to this supply relationship).
b. The goods delivered by allbranded to the client shall remain the property of allbranded until all secured claims have been paid in full. The goods, as well as the goods covered by the reservation of proprietary rights, which replace the same in accordance with the following provisions, are hereinafter referred to as "reserved goods".
c. The buyer shall keep the reserved goods for allbranded free of charge.
d. The buyer shall furthermore be entitled to sell the reserved goods during their ordinary course of business up until utilization (see paragraph h below). Pledging and security transfers are not permitted.
e. In the event of a resale of the goods subject to a reservation of proprietary rights, the client hereby transfers any resulting claims against the respective purchasers to allbranded by way of security. The same applies to other claims in relation to the reserved goods, or any claims which may otherwise arise with regard to the reserved goods, such as insurance claims or tort claims in the event of loss or destruction. allbranded herewith revocably authorizes the client to collect these claims as transferred to allbranded in their own name. allbranded may only revoke this authorization in the event of realization.
f. Should third parties access any goods subject to such a reservation of proprietary rights, and in particular as a result of confiscation, the client shall inform them of allbranded’s ownership and shall notify allbranded of this in order to enable them to enforce their proprietary rights. Should the third party not be able to reimburse allbranded for the judicial or extrajudicial costs incurred in this regard, the client shall be liable towards allbranded.
g. allbranded shall release the goods subject to such a reservation of proprietary rights, as well as any items or claims used instead in case of the respective value exceeding the amount of the secured claims by more than 50%. The selection of the respective items to be released shall be at allbranded’s discretion.
h. Should allbranded withdraw from the contract in the event of a breach of contract by the buyer – and in particular due to a default of payment - ("event of utilization"), they shall be entitled to demand a return of the reserved goods.
9. Miscellaneous stipulations
a. allbranded assumes no liability for the content of websites to which we provide links. allbranded does not adopt the content of the linked pages as their own and does not accept any liability for their topicality, completeness, quality, correctness etc.
b. All copyright law utilization rights for any process or purpose relating to sketches, drafts, originals, films and the like made by allbranded shall remain with allbranded, unless expressly stipulated otherwise.c. As a retailer, allbranded is legally obliged to take back batteries and accumulators free of charge, which have been purchased from allbranded. Batteries should not be disposed of in household waste. If a customer wants to return batteries and rechargeable batteries to allbranded, care should be taken to ensure that the shipment is sufficiently franked. Batteries or rechargeable batteries that contain harmful substances are marked with a symbol depicting a crossed out bin; these must not be disposed of in household waste. The chemical name of the pollutant is located near the bin symbol. These symbols may be found on batteries and accumulators that contain harmful substances: Pb = battery / accumulator contains lead; Cd = battery / accumulator contains cadmium; Hg = battery / accumulator contains mercury.
c. If an order includes alcoholic beverages or tobacco products, then by placing this order, the customer confirms that they are of legal age. The customer undertakes to ensure that only they or another person of legal age authorized by them will accept the goods.
10. Final clauses
a. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is issued in writing by allbranded.
b. Any disputes between the allbranded and buyer, whether arising under this agreement or otherwise, which the parties cannot resolve between themselves using good faith shall be referred to a court certified mediator of the Court in the County of the principal office allbranded North America Inc., and any mediation shall be held in the County of the principal office of the same. The buyer shall bear the cost of said mediation. In the event that said dispute is not resolved in mediation, the parties shall submit the dispute to a neutral arbitrator residing in the State of Delaware, USA. The arbitration shall be held in the State of Delaware, USA and the buyer shall bear the cost of said arbitration. In the event that the parties are unable to agree upon an arbitrator within 15 days of the date on which either party requests arbitration of a matter, the arbitrator shall be provided by the American Arbitration Association. The parties further agree that full discovery shall be allowed to each party to the arbitration and a written award shall be entered forthwith. Any and all types of relief that would otherwise be available in Court shall be available to both parties in the arbitration. The decision of the arbitrator shall be final and binding. Arbitration shall be the exclusive legal remedy of the parties. Judgment upon the award may be entered in any court of competent jurisdiction. If either party refuses to comply with a ruling or decision of the arbitrator and a lawsuit is brought to enforce said ruling or decision, it is agreed that the party not complying with the ruling or decision of the arbitrator shall pay all the court costs and reasonable attorney's fees (including Trial and Appellate attorney's fees) incurred in enforcing the ruling or decision of the arbitrator. Any rights of injunctive relief shall be in addition to and not in derogation or limitation of any other legal rights.
c. Nothing in this Agreement or any purchase order pursuant to this Agreement shall be construed as creating an employer-employee or joint venture relationship.
d. Any notice sent pursuant to this Agreement to allbranded shall be also sent, together with a copy of this Agreement, to: allbranded North America Inc., 2980 McFarlane Rd, Miami, FL, 33133, USA. Notices shall be effective upon receipt.
e. This Agreement constitutes the entire understanding of the parties and supersedes all prior discussions, negotiations, agreements and understandings, whether oral or written, with respect to its subject matter.
f. If any provision of these Terms & Conditions is held invalid, unenforceable, or void by a court of competent jurisdiction, these Terms & Conditions shall be considered divisible as to such provision, and the remainder of the Terms & Conditions shall be valid and binding as though such provision were not included in these Terms & Conditions.
g. If a lawsuit is necessary to enforce these Terms & Conditions the parties agree that jurisdiction and venue are waived. And suit shall be brought in the jurisdiction of the location of the principal place of business of allbranded.
h. Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
i. This Agreement shall be governed by the laws of Delaware (without regard to the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect and performance. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply, even where the customer’s registered office is located in another country.