TERMS & CONDITIONS
WHOLESALE AND CORPORATE TERMS AND CONDITIONS
Unless the Parties expressly agree otherwise in a signed writing, the following Terms and Conditions will govern any and all purchase orders submitted and invoices exchanged between the Parties. The Parties agree that the use of a purchase order to place orders for Goods or services (collectively, “Goods”) shall be construed to supplement the terms of these Terms and Conditions only to the extent that the additional terms are not inconsistent with these Terms and Conditions. These Terms and Conditions will be incorporated into all purchase orders and invoices between the parties, regardless of whether specific reference to these Terms and Conditions is made therein. As used herein, “BFPW” refers to BFPW Grosshandel GmbH, “you” refers to the customer ordering and/or receiving the Goods, and the “Parties” refers, collectively, to BFPW and to you, as a customer of BFPW.
1. PURCHASE ORDERS; TERMS
1.1. Customers. BFPW is solely selling its goods to business customers.
1.2. Cancellation of Purchase Orders. Your receipt of an electronic or other form of order confirmation constitutes your request for Goods or services. It does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We may require additional verifications or information. If you need to cancel an order following submission, please contact us immediately; Orders for which we have already commenced work to complete or fulfill are not cancellable.
We reserve the right at any time after receipt of your order to accept or decline your order for any reason, or to cancel an order that has already been accepted. Other than as set out in these Terms and Conditions, we shall not be responsible for any loss or damage of any kind, which you might suffer by reason of us declining to accept or for canceling your order.
1.3. Payment. You must pay in full by debit card, credit card, or corporate check in advance when you submit an order through our website, email, fax, or telephone. Payment will be collected at the time of placing the order. You authorize BFPW to charge your credit card on file with us for your orders and any additional charges that accrue. Unless agreed otherwise in writing by us, full payment must be received in advance before any Goods are prepared or dispatched. If any payment is subsequently withdrawn, disputed, charged back or reversed in any way, you will have to pay the full amount of the sale, plus an administration fee and any additional fees incurred by BFPW.
1.4. Refunds. Unless a product is defective, all sales are final and no refunds or store credit will be issued
1.5. Cancellation. Orders cannot be canceled once BFPW has begun processing the order. In order to promptly deliver our products, the processing of an order commences almost immediately once you have submitted your order. However, should you wish to change or cancel your order, you are welcome to call us to check whether the processing of an order has commenced, and if it has not we may be able to accommodate your request to cancel and will do our best to meet your needs. Any changes to or cancellation of an order can only be made with BFPW’s prior written approval and additional charges may apply. Any agreement by BFPW to accommodate a cancellation request will be conditioned upon payment of any and all costs, charges and expenses already incurred by BFPW to that point, and you agree that such amounts may be deducted from any payments previously made to BFPW. Accordingly, we encourage you to carefully check your order before submitting it.
1.6 Quotes. Price quotes are good for thirty (30) days.
1.7. Webprices. All the prices displayed on our web-catalogue are prices excluding VAT.
2. CUSTOM ORDERS
2.1. Quotes/Custom Orders/Changes. Custom pricing and design options are subject to change at any time. For custom orders, we require an upfront, non-refundable payment equivalent to 50% of the order value which will be credited against your full order should you proceed. Unless otherwise stated by BFPW, pricing for custom orders includes several reviews for custom artwork, so that you will have the opportunity to review a draft of the artwork and then review any revisions made based on your comments arising from your initial review. BFPW will provide proofs of custom artwork that must be approved by you. Final designs will be reflected on a Custom Approval Form or agreed between the parties in writing. Once that Form is submitted, BFPW will immediately begin production of the order and no further changes to the artwork will be permitted. By finalizing your order through the Approval Form, you are verifying that all information is accurate and according to your specifications. BFPW is not responsible for any errors in artwork or copy provided by you. BFPW is not responsible for any errors once such custom work has been approved by you.
2.2. Intellectual Property Artwork. By submitting content, images, or artwork (collectively, the “Artwork”) to us for custom work, you (i) represent and warrant that you have the complete and exhaustive right, title, and ownership in the Artwork, and no portion of the Artwork infringes or otherwise misappropriates any third party intellectual property or similar rights or claims, anywhere in the world, and (ii) will be deemed to provide BFPW with a perpetual, fully paid-up, non-exclusive, irrevocable and non-terminable right and license to use, exploit, and display the Artwork for purposes of completing the custom order and fulfilling the terms herein. We will not check the content of any images provided by you. However, if we believe any image does not comply with these terms, we reserve the right to refuse to use it, without any obligation or liability to you.
As part of the license provided herein, we may photograph products that we provide to you, including those decorated with or otherwise displaying or making use of the Artwork, and we may display these photographs on our website or other advertising media, for BFPW’s marketing and promotional purposes, unless specifically requested in writing by you not to do so.
3.1. Shipping. Unless otherwise notified, shipping is not included in the costs of goods. Unless expressly agreed otherwise, BFPW will select the method of shipment and the carrier for all ordered items. If a shipment requires special equipment such as a truck with tail-lift or the need for a forklift upon delivery, BPFW will discuss upfront with you to find a suitable solution.
Goods will be delivered within a reasonable time after receipt of an order, subject to availability of finished Goods. Delivery will be deemed to have taken place at the time BFPW places an order in the possession of any carrier service (e.g., DHL, UPS, Fedex, or any other transportation company) for customer delivery. BFPW is not responsible for lost, stolen or damaged Goods once an order leaves our possession.
If you choose a specific delivery date when placing your order, we will do our best to arrange delivery for that day. You acknowledge that requested delivery dates are non-binding estimates only and that you have no claim against us for any delays or early deliveries. Once your order is in the hands of the carrier we have no control over the delivery process and we recommend you choose a delivery date at least one day early to avoid disappointment. We reserve the right to make deliveries in installments which shall not relieve you from your obligation to accept and pay for remaining deliveries.
If for any reason you fail to accept delivery for any items, or if we are unable to deliver the items at the address specified on the order, (i) risk of loss to the items will pass to you, as the buyer, (ii) the items will be deemed to have been delivered, and (iii) we, at our option, may store the items until you pick them up, subject to your reimbursement for any storage-related costs or expenses.
Title and risk of loss will pass to you, as the buyer, upon delivery of Goods for shipment.
3.2. Inspection. You must inspect all deliveries immediately, and notify us immediately in writing of all claims for damages or defects. All claims relating to defects or shortage must be made within fourteen (14) days of delivery. Any such claims must be made in writing via email to your primary BFPW contact. Any rights to reject items expires after this 14-day period. If you timely notify us of any defective or damaged Goods, as your exclusive remedy, we will, in our discretion, either replace the Goods with similar items or credit you the purchase price.
3.3. Drophipping. To ensure accuracy, all dropshipping addresses will be used exactly as given by the client. BFPW accepts no liability for packages believed to be returned or delivered to incorrect addresses.
Please note that order lead time commitments do not commence until all order information, including all drop ship addresses, have been received by BFPW.
4. MERCHANDISING MATERIALS; LICENSE
4.1. Signage and Merchandising Support. From time to time, BFPW may provide you with access to certain marketing-related materials for use in reselling the Goods, including signage, graphics, artwork, and other proprietary customer-facing materials (collectively, the “Merchandising Materials”). BFPW hereby grants to you a limited, terminable, non-exclusive right and license (the “Merchandising License”) to use the Merchandising Materials solely in connection with and for the specific purpose of marketing and selling the Goods, subject in all respects to the following:
4.1.1. The Merchandising Materials may not be altered, amended, defaced, manipulated, copied or appropriated for other purposes, without the express written consent of BFPW;
4.1.2. The Merchandising Materials may not be used for the benefit of any products or goods other than the Goods; and
4.1.3. Use of the Merchandising Materials and/or the Merchandising License must comply in all respects with any directions or instructions that BFPW may provide from time to time (including those set forth in any Brand Standards or Marketing Guidelines issued by BFPW), whether or not such directions or instructions are provided at the same time or in the same method as the Merchandising Materials.
4.2. Merchandising License Term. The term of the Merchandising License shall be until the earlier of (i) written notice of termination by BFPW (for any reason whatsoever and in its sole and absolute discretion), and (ii) six (6) months after your most recent purchase of Goods from BFPW. Upon conclusion of the term hereunder, the Merchandising License shall automatically terminate, without any further action of the Parties.
4.3. Ownership. Subject to the express rights and licenses granted in this Agreement, you acknowledge and agree as follows:
4.3.1. any and all BFPW’s intellectual property, including the “BFPW” mark and those reflected or referenced in the Marketing Materials (collectively, the “Intellectual Property”), is the sole and exclusive property of BFPW or its licensors;
4.3.2. you will not acquire any ownership interest in any of the Intellectual Property;
4.3.3. any goodwill derived from the use of the Intellectual Property inures to the benefit of BFPW or its licensors, as the case may be;
4.3.4. if you acquire any rights in or relating to any product (including any Goods) purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to BFPW or its licensors, as the case may be, without further action by either Party; and
4.3.5. you will use the rights granted under the Merchandising License solely in accordance with this Agreement and the instructions of BFPW.
4.4. Negative Covenants. During and after the Term, you will not do any of the following:
4.4.1. Register or apply for registrations, anywhere in the world, for the Intellectual Property or any rights that are similar to, confusingly similar to, or otherwise incorporate the Intellectual Property;
4.4.2. Use any mark, anywhere, that is confusingly similar to the Intellectual Property, except as provided under the Merchandising License;
4.4.3. Engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or BFPW; or
4.4.4. Misappropriate any of the Intellectual Property for use as a domain name or internet search term, without prior written consent of BFPW.
5. LIMITED WARRANTY; LIMITED LIABILITY; INDEMNIFICATION
5.1. Warranty. BFPW warrants that it has the right to provide its products, but otherwise the Goods are provided on an “as- is” basis, with the small difference that each product can have without warranty of any kind, express or implied, oral or written. In particular, but without limitation, no warranty is given that the Goods are suitable for the particular purposes intended by you. Except for the foregoing, you acknowledge and agree that (a) neither BFPW nor any person on BFPW’s behalf has made or makes any express or implied representation or warranty whatsoever, including any warranties of merchantability, fitness for a particular purpose, non-infringement, or performance of products to standards specific to the country of import, whether arising by law, course of dealing, course of performance, usage of trade or otherwise, all of which are expressly disclaimed, and (b) you have not relied on any representation or warranty made by BFPW, or any other person on BFPW’s behalf.
5.2. Limited Liability. In no event, at any time, shall the aggregate liability of BFPW exceed the amount paid by you to BFPW for the Goods or services being purchased and BFPW shall not be responsible for any lost profits or other damages, including special, direct, indirect, incidental, consequential or any other damages, however caused. Without limitation, to the fullest extent permitted by applicable law, BFPW shall not be liable for any claim arising out of the performance, non-performance, delay in delivery of or defect in the Goods, nor for any special, indirect, economic or consequential loss or damage however arising or however caused (including loss of profit or loss of revenue) whether from negligence or otherwise in connection with the supply, functioning, or use of the Goods sold by BFPW.
5.3. Indemnification. To the fullest extent permitted by law, you agree to indemnify, hold harmless, and defend BFPW, its affiliates, parents, and subsidiaries, and their respective agents, officers, directors, employees, partners, consultants, independent contractors, successors and assigns against any and all loss, claim of loss, injury, costs and damages arising from (i) your purchase, display, or use of Goods (except where such claims relate to breach of any warranties provided by BFPW), (ii) your breach of the terms hereof, or (iii) your or your representatives’ gross negligence or willful misconduct.
7.1. Product Defects and Recalls. You will promptly notify BFPW of any identified material defects or suspected defects in the Goods, and will use commercially reasonable efforts to comply with any product recalls or inspection needs initiated by BFPW.
7.2. Choice of Law; Dispute Resolution. Any dispute arising from or relating to the Parties’ relationship and/or these Terms will be governed by the German laws, without regard to any applicable choice of law rules. If a dispute arising from or relating to the Parties’ relationship and/or these Terms cannot be resolved by the Parties through unsupervised negotiation, it shall be submitted for resolution through binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Arnsberg, before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party in such arbitration shall be awarded its reasonable attorneys’ fees and costs. YOU AND BFPW AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO YOUR ORDER WITH BFPW MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
7.3. Integration; Severability. These Terms and Conditions shall constitute the entire agreement between you and BFPW regarding your order and the terms hereunder. If any provision of these Terms and Conditions is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect.
7.4. Amendment. BFPW may amend these Terms and Conditions at any time and without notice, and it is your responsibility to review these Terms and Conditions for any changes. Your use of the Website following any amendment of these Terms and Conditions will signify your assent to and acceptance of its revised terms.