GTC

Section 1 – Scope and Definitions

1. These General Terms and Conditions apply to all business relationships between us, Vinyl Project GmbH, Im Gali 20, 8261 Hemishofen, Switzerland (hereinafter “we” or “Vinyl Manufaktur”), and you as our customer (hereinafter “you”).

2. A consumer is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business or profession (Sec. 13 German Civil Code, BGB). An entrepreneur (business) is a natural or legal person or a partnership with legal capacity that, when entering into the legal transaction, acts in the exercise of its trade, business or profession (Sec. 14 BGB).

3. Unless a distinction between consumers and entrepreneurs is expressly made below, the provisions apply equally to both. Mandatory consumer-protection provisions always take precedence over conflicting provisions of these GTC.

4. If you are an entrepreneur, these terms apply exclusively. We object to any deviating, conflicting or supplementary terms of yours; they only become part of the contract if we expressly agree to their application in text form.

Section 2 – Formation of the Contract

1. The presentation of our services and products does not constitute a binding offer. By placing your order, you make a binding offer to conclude a contract.

2. The contract is only formed once we accept your order by means of an order confirmation (preliminary invoice) or begin performing the order.

3. If you are a consumer, we will confirm receipt of your order without undue delay. Such confirmation of receipt does not constitute acceptance of your order unless it also declares acceptance.

4. We reserve the right to refuse orders whose content is insulting, defamatory, racist, pornographic, sexist, homophobic, glorifying or trivializing violence, immoral, extremist or otherwise unlawful.

Section 3 – Right of Withdrawal for Consumers

For products ordered by a consumer within the meaning of Sec. 13 BGB, the following applies:

You are not entitled to a right of withdrawal under Sec. 312g(2) sentence 1 no. 1 BGB in the case of contracts for the supply of goods that are not prefabricated and for the production of which an individual choice or decision by the consumer is decisive, or that are clearly tailored to the consumer’s personal requirements.

All products on our website are manufactured individually for you using the material you provide. Such products are not assembled and ordered a second time by any customer.

NOTE: A consumer’s right of withdrawal under the distance-selling provisions of the BGB therefore does not exist for our products.

We kindly ask you to take this into account before ordering and to contact us with any questions regarding the ordering and shipping of our products.

Of course, in the event of defects in the delivered product, we are prepared to provide subsequent performance within the scope of statutory liability for defects. In any case, we ask you to contact us::

• in the event of any complaints (e.g. product defects),
• before returning goods, and
• in the event of transport damage.

This does not entail any condition or restriction of your statutory rights. Your claims under statutory liability for defects remain fully available to you even where the right of withdrawal is excluded.

Section 4 – Prices and Payment Terms

1. If you are an entrepreneur, our prices are exclusive of statutory VAT at the applicable rate. If you are a consumer, the prices stated include statutory VAT (total price); any additional delivery and shipping costs are shown separately.

2. Unless the order confirmation states otherwise, our invoices are due for payment in EURO without deduction within 30 days of the invoice date, and in any case before delivery of the order.

3. Unless otherwise agreed, you pay 50% of the order total as a down payment upon receipt of the order confirmation; the remaining 50% becomes due by the delivery date, and in any case before delivery of the order.

4. Payment is deemed received on the day the amount is credited to us or the credit advice reaches us.

5. We only begin production after receipt of the first installment. If the second installment is not paid, we are entitled to retain the ordered goods until payment in full. You bear any resulting documented additional costs to the extent you are responsible for the default.

Section 5 – Your Obligations as Customer

1. You warrant that the materials and content you supply do not contain any insulting, defamatory, racist, pornographic, sexist, homophobic, violence-glorifying or violence-trivializing, immoral, extremist or otherwise unlawful content.

2. You confirm that you have notified the competent collecting society (e.g. GEMA) of the use and that you hold the necessary authorizations. You will present these to us on request.

3. You ensure that you provide your own customers with the safety data sheet (sticker on the sleeve) for liquid-filled vinyl.

Section 6 – Delivery, Shipping and Passing of Risk

1. Promised delivery dates are guideline dates ex works and are subject to the timely delivery of the required documents, approvals and source materials as well as receipt of agreed advance payments. The delivery period does not begin before you have provided the documents, permits and approvals to be procured by you and before receipt of any agreed down payment and the source materials. A binding delivery date (fixed-date transaction) is only established by express agreement in text form.

2. Force majeure and other events unforeseeable at the time of conclusion of the contract and not attributable to us (in particular war, pandemics, official measures, strike, lockout and disruptions of the supply chain not caused by us) extend the delivery period by the duration of the impediment plus a reasonable start-up time. If the impediment lasts longer than six weeks, both parties are entitled to withdraw from the affected part of the contract; we will refund any consideration already provided without undue delay. Your statutory rights of withdrawal and termination remain unaffected.

3. The delivery period is met if the delivery item has left the works by its expiry or we have given notice of readiness for shipment.

4. If you are an entrepreneur: In the case of shipment, the risk of accidental loss and accidental deterioration passes to you upon handover to the forwarder, carrier or other person designated to carry out the shipment (Sec. 447 BGB). If shipment or acceptance is delayed for reasons for which you are responsible, the risk passes upon receipt of the notice of readiness for shipment.

5. If you are a consumer: The risk passes to you only upon handover of the goods to you. This does not apply if you have commissioned the carrier yourself without us having previously named that carrier (Sec. 475(2) BGB).

6. We determine the shipping route and means of transport unless you instruct otherwise. Packaging and shipping costs as well as any customs duties are shown and charged separately.

7. If shipment is delayed at your request, we may charge you, starting one month after notice of readiness for shipment, the costs actually incurred through storage; in the case of storage at our works, a flat rate of 0.5% of the net invoice amount per commenced month. You remain entitled to prove that no or substantially lower storage costs were incurred.

8. Partial deliveries are permitted insofar as they are reasonable for you. At your request and expense, we will insure the shipment against the usual transport risks.

Section 7 – Retention of Title

1. We retain title to the delivery item until full payment of the respective delivery item, including any ancillary claims under the contract (reserved goods).

2. The following applies in addition if you are an entrepreneur: If you resell the reserved goods in the ordinary course of business, you hereby assign to us by way of security the claims accruing to you from the resale against your customers in the amount of the final invoice amount agreed with us (incl. VAT); we accept this assignment. This applies regardless of whether the reserved goods are resold with or without processing. You remain authorized to collect the claim as long as you duly meet your payment obligations and are not in default of payment. Our authority to collect the claim ourselves remains unaffected; however, we will not make use of it as long as you duly meet your payment obligations.

3. We undertake to release the securities to which we are entitled at your request insofar as their realizable value exceeds the secured outstanding claims by more than 10%. We select the securities to be released.

4. In the event of seizures or other interventions by third parties in the reserved goods, you must notify us without undue delay and provide us with the documents required for an intervention. Insofar as the third party is unable to reimburse the resulting judicial and extrajudicial costs, you bear them, provided you are responsible for the intervention.

Section 8 – Default of Acceptance

1. If, after expiry of a reasonable grace period set for you, you refuse acceptance, or if you declare seriously and definitively beforehand that you do not wish to accept, we may withdraw from the contract and claim damages in lieu of performance.

2. In the case of damages, we may claim the full net order value. Because our products are manufactured individually as special productions according to your specifications and cannot be used elsewhere, our damage regularly corresponds to the full order value. You remain entitled to prove that we incurred no damage or substantially lower damage; in that case, the amount payable by you is reduced accordingly. The assertion of actual higher damage remains unaffected.

3. You are obliged to accept reasonable partial deliveries (advance deliveries).

Section 9 – Liability

1. We are liable without limitation

• for intent and gross negligence,
• for damage arising from injury to life, body or health,
• under the provisions of the Product Liability Act (Produkthaftungsgesetz), and
• to the extent of a guarantee expressly assumed by us.

2. In the case of a slightly negligent breach of a material contractual obligation, our liability is limited to the foreseeable damage typical of the contract at the time of its conclusion. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance you regularly rely and may rely.

3. Otherwise, our liability for slightly negligently caused damage is excluded. The above limitations of liability also apply in favour of our legal representatives and vicarious agents.

4. Source materials to be procured by you must be delivered to us free of defects and carriage paid. You ensure that they have no content-related or technical defects regarding format and function. Checking function and format is not part of a production order unless separately commissioned in text form; this incurs additional costs. We are liable for the loss of, or damage to, source materials and production documents provided to us in accordance with paragraphs 1 to 3 above.

5. We store and archive production material provided by you for up to 3 months after the order is placed. After expiry, the material is, in accordance with your instructions, returned at your expense or destroyed. Paid storage from the fourth month onwards may be agreed separately. If, despite a request and a reasonable deadline, you give no instructions, we are entitled to destroy the material.

6. We are not responsible for the content of the products commissioned. If the content of the source materials is homophobic, sexist, racist, violent or glorifying violence, pornographic, insulting or otherwise unlawful, we are entitled to withdraw from the contract; you must reimburse the associated costs to the extent you are responsible for them. If we are held liable by third parties on account of such content, you will indemnify us against such claims to the extent you are responsible for the infringement.

Section 10 – Liability for Defects (Warranty)

1. Your rights in the event of material and legal defects are governed by the statutory provisions unless otherwise stipulated below.

2. If you are an entrepreneur: You must inspect the goods without undue delay after delivery and notify obvious defects within 8 days of receipt and hidden defects without undue delay after discovery, in each case in text form (Sec. 377 German Commercial Code, HGB). If timely notice is not given, the goods are deemed approved in this respect.

3. If you are a consumer: There is no duty to inspect or to give notice of defects. The statutory rights in respect of defects and the statutory limitation periods apply.

4. Limitation: If you are a consumer, claims for defects in newly manufactured goods become time-barred 2 years after delivery. If you are an entrepreneur, claims for defects become time-barred 1 year after delivery. The reduction for entrepreneurs does not apply in the cases of Section 9(1) (intent, gross negligence, injury to life, body or health, guarantee, product liability), nor to the recourse claim under Secs. 445a, 478 BGB, nor in the case of fraudulently concealed defects.

5. We first have the right to subsequent performance within a reasonable period. If subsequent performance fails or we refuse it, you may, at your choice, reduce the price or withdraw from the contract. Claims for damages exist in accordance with Section 9.

6. Defects in part of the delivered goods do not entitle you to complain about the entire delivery, unless the partial delivery is of no interest to you.

7. If you are an entrepreneur, customary excess or short deliveries of up to 10% of the ordered quantity do not constitute a material defect; the quantity actually delivered is invoiced. If you are a consumer, the statutory provisions apply.

8. We agree with you on the following product- and material-related characteristics. These do not constitute a material defect:

a) Filling hole: The filling hole is a design-related weak point, particularly with liquid-filled vinyl. Liquids may escape from it.

b) Colour change: The colours of the liquids may fade or change over time. Due to the ageing process of PVC in combination with liquids, discolouration of the vinyl may occur over time.

c) PVC ageing: PVC is a plastic that ages; it may become cracked, milky or – depending on storage – warped. Particularly with liquid-filled vinyl, changes to the material may occur, over which we have no influence.

d) Improper use: Sand-filled vinyl in particular is not suitable for vertically playing devices. We are not liable for damage resulting from improper use.

9. We guarantee only those characteristics that are expressly promised as a guarantee in the order confirmation. There is no guarantee beyond this for characteristics or for the suitability of the product for a particular use.

Section 11 – Copyright and Industrial Property Rights

1. You warrant that the sound carriers, their content as well as their design and the like do not infringe copyrights, trademark rights or other rights of third parties, and in particular that you may freely dispose of all audio, image, text and other data commissioned. In the event of an infringement, we are entitled to withdraw from the contract or to suspend production and delivery until the factual and legal situation has been clarified. You bear the associated costs to the extent you are responsible for the infringement.

2. If you are held liable for the infringement of third-party rights or for an injunction against the continued use of the delivery item, you must inform us thereof without undue delay.

3. You consent to our passing on order-related information, insofar as this is necessary to safeguard copyrights and related protective rights, to the competent collecting societies or protective-rights organizations for the clarification of these rights.

Section 12 – Reference Copies

For all productions of more than 10 units, you provide us free of charge with at least one reference copy, including the cover, of the published production. We are entitled to use reference copies for the purpose of our own advertising (e.g. as references).

Section 13 – Data Protection

We process your personal data exclusively in accordance with the statutory provisions (in particular the GDPR and the German Federal Data Protection Act, BDSG). Details can be found in our separate privacy policy .

Section 14 – Choice of Law, Place of Jurisdiction and Final Provisions

1. The law of the Switzerland applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). If you are a consumer with habitual residence abroad, the mandatory consumer-protection provisions of the country of your habitual residence remain unaffected.

2. If you are a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the business relationship is our place of business in Hemishofen. We are additionally entitled to bring an action at your general place of jurisdiction. If you are a consumer, the statutory places of jurisdiction apply. The place of performance is Hemishofen, to the extent permitted by law.

3. Amendments and supplements to this contract must be made in text form; this also applies to the cancellation of this text-form requirement. The priority of individual contractual agreements (Sec. 305b BGB) remains unaffected.

4. Should individual provisions of this contract be or become invalid or unenforceable, the validity of the remaining provisions remains unaffected. The statutory provisions (Sec. 306 BGB) take the place of any invalid or unenforceable provisions and fill any gaps.

Section 15 – Consumer Dispute Resolution

We are neither obliged nor willing to participate in a dispute-resolution procedure before a consumer arbitration board (Sec. 36 VSBG).