Terms and Conditions
Standard Terms and Conditions of Sale – Online Store Customers (Consumers)
(includes legal information)
1. Scope of application
2. Contractual partners
3. Offer and conclusion of contract
4. Revocation guidelines
5. Pricing and shipping charges
8. Reservation of proprietary rights
9. Shipment damages
Standard Terms and Conditions of Sale
of FIFTYEIGHT 3D Animation & Digital Effects GmbH
FOR ONLINE STORE CUSTOMERS (CONSUMERS)
1. Scope of Application
The following Terms of Service apply to all deliveries by FIFTYEIGHT 3D Animation & Digital Effects GmbH (in following: 58 GmbH) to consumers (Para. 13 BGB/German Civil Code).
A consumer means every natural person who enters into a legal transaction for a purpose that is outside his trade, business or profession.
2. Contractual partners
The contract of purchase is concluded with: FIFTYEIGHT 3D GmbH, Lindleystraße 12, 60314 Frankfurt am Main, Germany, Commercial Registry: District Court of Frankfurt, Germany, HRA 79023. For questions, returns and complaints you may reach our customer service during workdays between 9:00 AM and 6:00 PM via e-mail at email@example.com.
3. Offer and conclusion of contract
3.1 The representation of products in our online shop shall not constitute a legally binding offer, but rather an invitation to place an order. Errors excepted.
3.2 By clicking the button [Complete order] during the final step of the order procedure, you agree to a binding order of all goods in the shopping cart. The contract of purchase is concluded after we receive your order upon receipt of our confirmation e-mail immediately after receiving your order or by delivering your products within 2 days.
4.1 If you are shopping for purposes assigned neither predominantly to your commercial nor to your self-employed occupation and if you are thus ordering as a consumer, you are entitled to a right of withdrawal according to the following withdrawal instruction:
RIGHT OF WITHDRAWAL
YOU HAVE THE RIGHT TO WITHDRAW FROM THIS CONTRACT WITHIN 14 DAYS WITHOUT STATING ANY REASONS.
THE WITHDRAWAL PERIOD WILL EXPIRE AFTER 14 DAYS FROM THE DAY ON WHICH YOU OR A THIRD PARTY YOU NOMINATED AND WHO IS NOT THE CARRIER RECEIVED THE GOOD(S).
IN ORDER TO EXERCISE YOUR RIGHT OF WITHDRAWAL, YOU SHALL INFORM US (FIFTYEIGHT 3D GmbH, Lindleystraße 12, 60314 Frankfurt am Main, Fax: 069.4800055.15, E-Mail: firstname.lastname@example.org) OF YOUR DECISION TO WITHDRAW FROM THE CONTRACT BY MEANS OF AN UNEQUIVOCAL DECLARATION (FOR EXAMPLE, IN A LETTER SENT BY POST, TELEFAX OR EMAIL). FOR THIS, YOU MAY USE THE ATTACHED WITHDRAWAL FORM, ALTHOUGH THIS IS NOT A STRICT REQUIREMENT.
IT SHALL BE DEEMED SUFFICIENT FOR COMPLIANCE WITH THE WITHDRAWAL TERM, IF YOU DISPATCH THE NOTIFICATION OF EXERCISING THE RIGHT OF WITHDRAWAL BEFORE THE WITHDRAWAL TERM HAS EXPIRED.
CONSEQUENCES OF WITHDRAWAL
WHEN YOU WITHDRAW FROM THIS CONTRACT, WE ARE OBLIGATED TO REFUND ALL OF THE PAYMENTS THAT WE HAVE RECEIVED FROM YOU, INCLUDING DELIVERY COSTS (EXCEPT ADDITIONAL COSTS RESULTING FROM YOUR DECISION TO USE A DIFFERENT DELIVERY METHOD THAN THE CHEAPEST STANDARD METHOD WE OFFER), WITHOUT ANY UNDUE DELAY AND WITHIN NO MORE THAN 14 DAYS AFTER RECEIPT OF YOUR NOTIFICATION OF WITHDRAWAL. FOR THIS REFUND, WE WILL USE THE SAME PAYMENT THAT YOU USED FOR THE ORIGINAL TRANSACTION, UNLESS EXPRESSLY AGREED OTHERWISE WITH YOU; IN ANY EVENT, WE SHALL NOT CHARGE YOU ANY FEES ON THE BASIS OF THIS REFUND. WE MAY REFUSE TO MAKE THE REFUND UNTIL WE HAVE RECEIVED BACK THE GOODS OR UNTIL YOU HAVE PROVIDED EVIDENCE THAT YOU HAVE SENT BACK THE GOODS, WHICHEVER IS EARLIER.
YOU ARE OBLIGED TO RETURN THE GOODS WITHOUT ANY UNDUE DELAY AND IN ANY EVENT WITHIN NO MORE THAN 14 DAYS AFTER THE DATE ON WHICH YOU NOTIFIED US OF THE WITHDRAWAL. THE DEADLINE WILL BE UPHELD PROVIDED THE GOODS HAVE BEEN DISPATCHED WITHIN 14 DAYS OF THE NOTIFICATION. WE SHALL BEAR THE DIRECT COSTS FOR THE RETURN OF THE GOODS.
YOU ARE ONLY REQUIRED TO COMPENSATE FOR ANY DIMINISHED VALUE OF THE GOODS, IF THIS DIMINISHED VALUE IS ASCRIBED TO AN UNNECESSARY HANDLING THEREOF ON YOUR PART TO TEST THE CONDITION, FEATURES AND MODE OF OPERATIONS OF THE GOODS.
Standard withdrawal form
(If you wish to withdraw from the contract, please fill out this form and return it to us.)
FIFTYEIGHT 3D GmbH
60314 Frankfurt am Main
I/we (*) herewith revoke the contract that I/we (*) concluded concerning the purchase of the following goods (*)/the provision of the following service (*):
Ordered on (*)/received on (*):
Name of consumer(s):
Address of consumer(s):
Signature of consumer(s) (only for notification on paper):
(*) Delete as appropriate
- 4.2 The right to withdraw does not exist in the case of contracts concluded for the delivery of products especially manufactured according to customer specifications or clearly according to personal customer needs, or in case of delivery of audio or video recordings or software when the seal on the delivered data medium has been opened by the customer.
4.3 In your personal customer account we will show you the easiest and most comfortable way to return any products. Please follow the Retoure-Steps which you will find to every order in your personal account (https://www.58products.com/my/).
4.4 Please consider that the modalities stated in Para. 4.3 are not preconditions for the effective execution of the right of withdrawel.
5. Pricing and shipping charges
5.1 The prices stated on the product pages include the statutory value-added tax as well as other price components.
5.2 In addition to the indicated prices we calculate a flat delivery fee for every order. For deliveries inside Germany the fee is 5.00 EUR. For delivery into the following countries, a flat shipping charge of 15.00 EUR applies: Switzerland, United Kingdom, Sweden, Finland, Norway, Poland, Belgium, Denmark, Estonia, France, Greece, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Austria, Portugal, Romania, Slovakia, Slovenia, Spain, Czech Republic, Hungary, Cyprus, Lichtenstein, Bulgaria, Monaco, Vatican.
For delivery into the following countries, a flat shipping charge of 30.00 EUR applies: Russia, Ireland.
Deliveries into other countries, not specified above, are subject to a flat shipping charge of 35.00 EUR.
The delivery fees are calculated automatically depending on the country of the delivery address and will be stated clearly before you confirm your order in the final step of the ordering process.
5.3 For payments per cash on delivery an additional fee amounting to 3.60 EUR applies as a delivery surcharge in the amount 2.00 EUR applies, which the deliverer collects on location. Other taxes or costs don't incur with delivery.
6.1 Deliveries are handled by DHL.
6.2 The delivery time within Germany is up to 5 days after the order is received or, if applicable, receiving the prepayment, in case the delivery time is stated as “Available” or “Only few available”. Exceptional delivery times, if applicable, will be announced on the respective product page for an item. International deliveries may be subject to longer delivery times.
6.3 We reserve the right to make partial deliveries at our cost if not all ordered goods are in stock; in as far as this is reasonable for the contracting partner.
6.4 Should attempts at delivering the merchandise prove impossible despite making three delivery attempts, due to no fault on our behalf, we will be able to cancel the contract. In such cases, any payments already made shall be refunded without delay.
6.5 In case the product ordered is not available, because we have not been supplied with the product by our distributor without our personal negligence, we may withdraw from the contract. In this case, we will notify the customer immediately and suggest the delivery of a comparable product, if applicable. Should no similar product be available or should the customer not wish to receive a similar product, then the customer will be reimbursed for any payments already made.
7.1 Payment may be made by advance payment, credit card, PayPal, direct bank transfer or cash on delivery.
7.2 Upon selecting the option advance payment via bank transfer, customers will receive an order confirmation including our bank account details and we will ship the merchandise after receiving payment. The invoice amount is to be transferred to our account within 10 days , otherwise the order will be cancelled.
7.3 The billing on this website via credit card is performed by: HUELLEMANN & STRAUSS ONLINESERVICES S.à r.l., 1, Place du Marché, L-6755 Grevenmacher, R.C.S. Luxembourg B 144133, E-Mail: info @ hso-services.com, Directors: Dipl. Vw. Mirko Hüllemann, Heiko Strauß
7.4 You credit card account will only be charged after you have completed your order.
7.5 Customers are only entitled to the right to indemnifications in case their counter claims have validity in the judicial order or are indisputable or recognized by us in written form.
7.6 Right of retention only exists as long as the claims result from the identical contractual relationship.
8. Reservation of proprietary rights
The ordered merchandise remains our property until paid in full.
9 Shipment damages
9.1 In case any merchandise is delivered with obvious damages incurred during transport, please claim these defects immediately with the delivery company and contact us at your earliest convenience via e-mail at email@example.com.
9.2 Failure to file a complaint or notify us in a timely manner will not infringe on your statutory warranty rights. However, it will help us validate our own claims toward the carrier and/or transport insurance.
The warranty is granted according to statutory provisions.
- Ordering Process
- Wording of a contract
- Data security
Once you have found the desired product, you can add it to your shopping basket without obligation by clicking the button [Add to basket]. You can view the content of the shopping cart at any time without any obligation by clicking the button [Basket] in the top right corner of the page. You can remove products from the cart by clicking on the button [Delete] at any moment. In order to purchase the products in your shopping cart, click on the button [Go to checkout] or [Checkout]. Next, please proceed to enter your personal information. All mandatory fields are marked with a * on the page. Registration is not required for purchase. Your personal data will be transmitted in encrypted form and cannot be viewed by third parties. After entering your personal data and choosing your mode of payment, clicking the button [Next] will lead to the ordering page with a chance to review all your ordering information once more. Clicking the button [Complete order] will confirm your order and complete the ordering process. This process can be aborted at any time by closing the browser window. Additional information can be found on each page of the ordering process.
Wording of a contract
The wording of the contract will be stored internally in our system. The contract language is German. Our Terms of Service can be viewed at any time. You will receive your order information together with a link to our Terms of Service via e-mail.
The European Commission also provides a platform for online dispute resolution (ODR). This is available at http://ec.europa.eu/consumers/odr/. However, we are neither under any obligation nor willing to participate in a dispute resolution procedure that has been referred to a consumers’ conciliation board.
We thank you for your interest in our website. We want you to know that we take great care in the protection of your private data. In following, you can find some detailed information about the usage of your data.
Collection, processing and utilization of personal data
You may visit our website without providing any personal details. We merely store access data which is not personally identifiable. This information will only be used to evaluate our website service offer, and we are not able to draw any personal references from it. Personal data will only be collected if you supply it voluntarily, for example to carry out an order or when subscribing to our newsletter. We use the data that you have provided without your separate consent exclusively for the purpose of fulfilling and processing your order. With the full execution of the contract and the complete payment of the purchase price, your data will be blocked for further use and will be deleted upon expiration of the retention period in line with fiscal and commercial law requirements unless you have explicitly accepted the further use of your data. When registering for the newsletter, your e-mail address will, with your consent, be used for in-house advertising purposes until you unsubscribe from our newsletter. You may unsubscribe at any time.
Creating pseudonymous user profiles for web analytics
This website uses Google Analytics, a web analysis service of Google Inc. (“Google”). Google Analytics uses so-called Cookies, text files which are stored on your computer and which allows an analysis of the use of the website by you. The information generated by the Cookie about your use of this website (including your IP address) is transferred to a server by Google in the USA and is stored there. In case of activating IP anonymization on this website, your IP address will be shortened beforehand by Google within member states of the European Union or other contractual states for the Agreement on the European Economic Area. Only in exceptional cases will the full IP address be transferred to a Google server in the US and shortened there. On the request of the proprietor of this website, Google will use this information to evaluate your use of the website in order to put together a report about the website activities for the website operators and to produce linked services with the website use and the Internet use. The IP address transmitted by your browser during Google Analytics will in no circumstances be associated with the other data which are stored by Google. You can prevent the installation of the Cookies by a suitable setting of your browsers software; we point out to you, nevertheless, the fact that you cannot use all functions of this website in this case if necessary fully extensively.
Additionally, you may prevent the collection of data gathered through Cookies about your use of this website (including your IP address) by Google as well as processing of this data by Google by downloading and installing a browser plug-in available at the following address: https://tools.google.com/dlpage/gaoptout?hl=en
Use of AddThis Plug-ins (Facebook & Twitter)
Our website uses so-called “Social Plug-ins” (“Plug-ins”) by bookmarking service provider AddThis, which is operated by AddThis LLC, Inc. 8000 Westpark Drive, Suite 625, McLean, VA 2210, USA („AddThis“). These Plug-Ins are usually marked by the AddThis logo, for example in the shape of a white “plus” sign on orange background. An overview of AddThis Plug-Ins and their appearance can be found here: https://www.addthis.com/get/sharing.
When you are accessing a page of our Website containing such a Plug-In, your browser will automatically establish a connection to the AddThis servers. The contents of the Plug-In will be delivered by AddThis directly to your browser and implemented into the page. Through this implementation, AddThis receives the information that your browser has accessed the respective page of our Website and for the identification of your browser stores a cookie on your access device. This information (including your IP address) is transmitted by your browser directly to an AddThis server in the U.S. where it is stored. AddThis uses this data for the creation of anonymized user profiles that are the basis of personalized an interest-based advertising addressed to users of websites and AddThis Plug-Ins.
If you would like to opt out of the collection of data by AddThis in the future, you can install a so-called Opt-Out-Cookie, which can be downloaded at the following link: http://www.addthis.com/privacy/opt-out
You can also block the loading of AddThis Plug-Ins by using Add-Ons for your browser, e.g. the script blocker “NoScript” (http://noscript.net/).
Dissemination of personal data
We pass on certain data to the responsible shipping company, but only the information that is necessary for the safe and fast delivery of the merchandise. For the processing of payments, we pass on the relevant data to the authorized banking institution.
Right of access
In accordance with the (German) Federal Data Protection Act, you have a right to be provided with information free of charge relating to your stored data and, where applicable, the right to the rectification, erasure or blocking of your data.
Point of contact for data protection
For questions concerning collection, processing or use of your personal information, or for questions concerning accessing of information, amendments, suspension or deletion of data, as well as repealing of previously given authorization, please contact:
Marc Eckart, FIFTYEIGHT 3D GmbH, Lindleystraße 12, 60314 Frankfurt am Main, Germany Fax: +49 (0)69.4800055-15, e-mail: firstname.lastname@example.org
Standard Terms and Conditions of Sale
– Commercial Clients
§1 Scope of application
§2 Offer and conclusion of contract
§3 Supplied documentation
§4 Pricing and payment
§5 Offsetting and retention
§6 Delivery times
§7 Passing of risk upon shipment
§8 Reservation of proprietary rights
§9 Warranty and notice of defects and recourse/manufacturer recourse
Standard Terms and Conditions of Sale
to Commercial Customers
§1 Scope of application
1.These Terms of Sale exclusively apply to entrepreneurs, legal entities under public law, and special funds under public law within the meaning of Para. 310 Sec. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). Any terms and conditions of the purchaser that are contrary to or deviate from our Terms of Sale are not recognized by us unless we have expressly agreed to them in writing.
2. These Terms of Sale also apply to all future transactions with the purchaser if these are legal transactions of similar nature.
3. We have the right to hand over the entire execution of an order to our distribution partner, music distribution services GmbH in Mainz. In these cases, the distributor is also entitled to handle order confirmation and encashment independently.
§2 Offer and conclusion of contract
Any order that can be considered as an offer in accordance with Para. 145 of the German Civil Code can be accepted by us or our distribution partner within two weeks.
§3 Supplied documentation
We reserve our proprietary rights and copyrights to all documents such as drawings, specifications, and calculations etc. that are surrendered to the buyer when placing an order. Said documents shall not be disclosed to third parties unless we provide the purchaser with express written approval. In case we do not accept the buyer's offer within the period stated in Para. 2, the documents must be returned to us without delay.
§4 Pricing and payments
1. Unless otherwise agreed in writing, our prices are “ex works” and do not include packaging and the respective amount of applicable value-added tax (VAT). Unless otherwise explicitly stated, costs for packaging and shipping will be invoiced separately with a flat fee.
2. Payment of the purchasing price is to be made exclusively to the account specified on the invoice. Deduction of a discount is only permissible upon written special agreement. Unless otherwise agreed, the purchase price is to be paid within 14 days after delivery. We charge interest for late payment starting from the due date at a rate of 8 percent above the applicable base interest rate at that time. We explicitly reserve the right to assert claims for higher amounts of default compensation.
3. If no fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to changes in wage costs, material costs and distribution costs for deliveries occurring three months or later after conclusion of the contract.
§5 Offsetting and retention
The customer is only entitled to the right of set-off if the counterclaim is uncontested or determined as final and conclusive. The ordering party is only entitled to exercise a right to retention if the counterclaim is based on the same contractual relationship.
§6. Delivery times
1. The commencement of the delivery period specified by us is dependent on the purchaser's fulfillment of his or her obligations in a timely and proper manner. We reserve the right of the defence alleging non-performance of the contract.
2. If the buyer is in default of acceptance or if he culpably infringes other obligations to cooperate, we shall have the right to claim damages incurred to us including additional expenditures, if applicable. The right to make any further demands is reserved. If the preceding prerequisites exist, the risk of accidental loss or deterioration of the item purchased passes over to the buyer at the moment on which the buyer is in default of acceptance or of payment.
§7 Transfer of risk upon shipment
If the merchandise is sent to the purchaser at the purchaser's request, the risk of accidental loss or accidental deterioration of the goods transfers to the purchaser when the merchandise leaves the factory or warehouse. This applies regardless of whether shipment is made from the place of fulfillment or regardless of which party bears the shipping costs.
§8. Reservation of proprietary rights
1. All goods delivered shall remain our property until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not constantly and expressly refer to this fact. We are entitled to reclaim the sold merchandise if the buyer is in breach of contract.
2. The purchaser is obligated to handle the object of purchase with care until ownership has transferred to the purchaser. If maintenance and inspection work has to be carried out, the ordering party shall proceed accordingly in good time at his own costs. As long as ownership has not transferred, the purchaser must notify us immediately in writing if the delivered item is seized or subject to other interventions by third parties. Unless third parties are incapable of reimbursing our judicial and extrajudicial costs for an action as per Para. 771 ZPO (Rules of Civil Procedure), the customer shall be liable for any expenses defrayed by our company.
§9 Warranty and notice of defects and recourse/manufacturer recourse
1. Customer’s warranty rights (warranty claims) shall require that the customer inspects the goods without undue delay after receipt and notifies us of any defects discovered after the inspection or of any latent defects without undue delay after their discovery (Para. 377 of the German Commercial Code (Handelsgesetzbuch, HGB)). The notice has to be in writing and shall include a detailed description of the defect(s).
2. Any claims for defects come under the statute of limitations in 12 months after the product is delivered by us. Our consent must be obtained prior to any return of goods.
3. If despite all possible care the delivered goods contain a defect that existed before the transfer of risk, subject to the defect being notified within the prescribed period, we will decide whether to repair the goods or to supply replacements. In all cases, we must be granted the opportunity of subsequent fulfillment in accordance with the statutory regulations within an appropriate deadline. Recourse claims shall remain unaffected by the above regulation without restriction.
4. In case subsequent fulfillment fails, the customer – notwithstanding possible claims for damages – may withdraw from the contract or reduce the compensation.
5. Warranty rights shall not arise solely in the case of insubstantial deviation from the agreed quality, in the case of a merely insubstantial detraction from usability, in the case of natural wear and tear or damages which arise after the passage of risk due to negligent handling or storage, excessive stress, use of unsuitable equipment and facilities, of defective construction works, of unsuitable building ground or as a result of special exterior influences which had not been taken into consideration under the agreement. If repair work or modifications are carried out improperly by the purchaser or a third party, claims for defects cannot be asserted for these or the resulting consequences.
6. The customer shall not be entitled to claim expenses due to subsequent fulfillment, especially expenses for transportation, infrastructure, labor and material, if the increase in expenses is due to the fact that the object of the delivery has subsequently been transported to another place than the customer’s premises. This shall not apply, if the transportation took place in the scope of the intended use of the object.
7. Recourse action by the buyer against us shall only exist insofar that the buyer has not made arrangements with his/her customer which exceed the warranty claims mandatory by law. Regarding the extent of the customer's recourse entitlements against the supplier, Para. 6 shall be applied accordingly.
1. This contract, as well as the entire legal relationship between the parties, is subject to the law of the Federal Republic of Germany, to the exclusion of UN purchase law (CISG).
2. Place of fulfillment and sole court of jurisdiction for all disputes arising from this contract is our place of business, insofar as not otherwise agreed upon in the confirmation of order.
3. All agreements that are made between the parties for the purpose of the execution of this contract are stipulated in this contract.
4. In case individual provisions of this Agreement are or become ineffective or in case the agreement is incomplete, the effectiveness of the remaining provisions shall not be affected. The contracting parties undertake to reach an agreement in place of the invalid/incomplete clause, which corresponds as closely as possible to the commercial purpose of the invalid clause or complete the missing clause.
Terms and Conditions of Sale for the United States
1. Terms of Sale The sale of goods by FIFTYEIGHT 3D Animation & Digital Effects GmbH and any of its subsidiaries or agents (“58” or “Seller”) is subject to the terms and conditions contained herein. The terms and conditions contained herein take precedence over any terms and conditions which are proposed by a buyer of goods (“Buyer”), whether contained on a purchase order or otherwise. The terms and conditions contained herein, together with a purchase order and confirmation of such purchase order constitute the entire contract between the Buyer and 58 (as such, the “Agreement”) and shall supersede any and all other agreements and understandings between the parties with respect to the subject matter hereof. 58 hereby rejects any and all terms or conditions proposed by Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order).
Buyer will submit purchase orders for goods. The purchase order will become binding when 58 sends a purchase order confirmation to Buyer. A separate invoice will be included with delivery of the goods.
2. Prices All prices are in Euros (unless otherwise specified). The payment of any foreign, state, local and other taxes due on the sale of the goods is the responsibility of Buyer. If Seller must collect or pay upon the sale of goods any tax or there is any other tax upon Seller measured in whole or in part by the amount of such a sale, the price will be increased by an equal amount. Current import duty is included in the price, but any variation, temporary surcharge, or other charge applying to imported goods is not included and, if applicable, is at the cost of Buyer. All prices are “Ex Works” (Incoterms 2010) Seller’s warehouse. Loading and packaging will be charged separately. Unless Buyer and 58 have agreed on a fixed price, 58 shall be entitled to make reasonable price adjustments based on changes in wage costs, material costs and distributions costs for deliveries to be made no less than 3 months after purchase order confirmation.
Seller may, at its discretion, provide Buyer with pricing guidelines for resales (to the extent such resales are not prohibited under Section 10). Such guidelines shall be binding on Buyer, unless they provide unreasonable pricing limitations or are not enforceable under the laws of the State of Buyer’s domicile.
3. Terms of Payment
Unless otherwise stated in the purchase order confirmation, all prices are payable prior to shipment. The parties can agree in writing on different payment terms, which are binding upon inclusion in the purchase order confirmation. Buyer agrees to pay interest on overdue invoices of 8% per annum. 58 reserves the right to claim damages for late payment in addition to interest. Buyer shall not be entitled to any setoff rights, including based on other purchase orders.
4. Cancellation or Modification of Orders
Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without 58’s written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials incurred or for which 58 is obligated prior to cancellation or modification. Notwithstanding the foregoing, Buyer may not cancel or modify any order under any circumstances, if special or custom products are ordered from 58.
Unless otherwise agreed in writing by the parties, 58 reserves the right to select the mode of transport and the identity of the carrier from Seller’s warehouse. Neither Buyer nor any consignee shall have the right to direct or re-consign any shipment to any destination other than that specified in the bill of lading without 58’s written consent. Buyer shall be responsible to pay for all shipping and transportation costs.
The delivery period specified in the order confirmation, if any, is dependent on Buyer complying with its obligations, including advance payment of the purchase price, if applicable.
Should Buyer not accept delivery, 58 shall be entitled to recover any additional expenses incurred as a result thereof.
6. Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the goods to the carrier at the location of 58.
7. Limited Warranty/Exclusive Remedy
58 warrants that the goods are free from defect in material and workmanship at the time of shipment. If the goods are mutually determined to be defective, then 58 will, at its option, replace the defective goods or, if only one or some goods of a purchase lot are defective, refund a pro rata portion of the purchase price for the defective goods. 58 shall have no obligation with respect to any defect in any of its goods unless it is notified within ninety (90) days after shipment of the goods stating the full particulars of the claim. THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND 58 WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL GOODS DURING AND AFTER THE WARRANTY PERIOD. IN NO EVENT WILL 58 BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, EVEN IF 58 HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. To the extent the limitation or exclusion of liabilities or damages contained herein is not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by applicable law.
8. Disclaimer of other Warranties
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OR LIABILITIES OF 58, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY 58.
9. Limitation of Warranty
58 assumes no warranty liability with respect to defects in any goods caused by: (a) improper storage of the goods; (b) repairs to the goods by anyone other than 58 or its authorized agent; or (c) negligent or other improper use or handling.
10. Resale Restrictions
Without the express prior written consent of 58, Buyer may not:
(a) Resell any goods through e-commerce platforms, such as, without limitation, eBay.com; amazon.com; jet.com; or overstock.com;
(b) Resell any goods other than to retail customers (for the avoidance of doubt, and without limitation, any resale of goods in bulk to department stores, drugstores, convenience stores, or gas stations is prohibited hereunder); and
(c) Resell any goods to any countries other than the United States or for purposes of distribution to any countries other than the United States, including re-import into Germany or sales for purposes of re-importing into Germany.
It is hereby agreed and acknowledged that it may be impossible to measure in money the damages that Seller would suffer if Buyer fails to comply with any of the obligations herein imposed on it, and that in the event of any such failure, Seller will be irreparably harmed. Seller shall, therefore, be entitled (in addition to any other remedy to which it may be entitled in law or in equity, including for damages) to injunctive relief.
11. Buyer Intellectual Property
If words, symbols or designs are provided to 58 by Buyer for printing on a particular good then Buyer represents that the words, symbols and designs are either in the public domain or are the property of Buyer and do not infringe on the trademarks, copyrights or other intellectual property rights of others.
12. Credit Approval
58 may invoice Buyer and recover for each delivery as a separate transaction without regard to any other delivery. If Buyer is in default under any agreement with 58, or if, in 58’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then 58 may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder, except upon receipt of satisfactory security or cash payments in advance (even if the parties had previously agreed otherwise), or (ii) terminate any order of goods that may have been placed by Buyer. Buyer shall reimburse 58 for any costs incurred by 58, including reasonable attorney’s fees, to collect amounts due by Buyer to 58.
13. Force Majeure
58 shall not be liable for failure to perform or delays in performance caused by acts of God (including, without limitation weather-related events or earthquakes); war (declared or undeclared), riot or act of terrorism; fire, explosions or floods; strikes, work stoppages, slow-downs, or other labor difficulties; shortage of vehicles, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with any order or request by a government agency or official thereof; or any other event or contingency beyond its reasonable control. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable 58 to perform. 58, may, during any period of shortage due to any of the above contingencies, allocate its available supply of goods among itself and its customers in such manner as 58, in its reasonable judgment, deems fair and equitable.
In addition to any remedies that may be provided under these terms, 58 may terminate any purchase order for which partial shipment has been made with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under any purchase order; (ii) has not otherwise performed or complied with any of these terms, in whole or in part; (iii) is the subject of a transaction as a result of which the majority of its ownership interests are acquired by a person that directly or indirectly, competes with the business of 58, as reasonably determined by 58; or (iv) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of 58. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these terms and conditions.
16. Limitation of Actions
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this Agreement by 58 shall be barred unless commenced by Buyer within one year from the date of shipment.
17. Governing Law; Dispute Resolution
These terms and conditions, the Agreement and the relationship between the parties shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of laws provision or rule. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any controversy or claim arising out of or related to these terms and conditions, the Agreement or the relationship between the parties shall be resolved by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.
18. Relationship of the Parties
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, franchisor/franchisee relationship or any fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. Third Party Beneficiary
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
If any provision of this Agreement shall be held to be unlawful or unenforceable, the remaining portions of this Agreement shall remain in full force and effect. No other Agreement or understanding shall modify this Agreement in any way or shall be binding upon 58 unless contained in a writing signed by 58’s authorized representative.
Valid as of 1 February 2018.