Potsdamer Feuerwerk GmbH

Terms and conditions – General delivery and payment conditions

§ 1 General business terms
§ 1.1
The deliveries, services and offers of Potsdamer Feuerwerk Vertriebs GmbH or conducted solely in line with our general terms and conditions of business. They apply to all contracts, deliveries, services and offers including consulting services. Information and deviation from these conditions are only valid if Potsdamer Feuerwerk Vertriebs GmbH has agreed to them in written form. There are additional terms and conditions for the service area of fireworks (putting on a fireworks display).
§ 1.2
Possible purchasing conditions of the buyer are herewith rejected. They are still not applicable if Potsdamer Feuerwerk Vertriebs GmbH does not expressively reject them upon reception at our end. Acceptance of goods shall be deemed to be acceptance of these conditions of sale. Any term sought to be imposed by a purchaser either in a document or otherwise that conflicts with or adds to these conditions is not accepted. An objection to our terms and conditions must be made in writing bo more than 8 days and must be acknowledged in writing to be valid. This also applies to possible rejection clauses of the client
§ 1.3
The offers of Potsdamer Feuerwerk Vertriebs GmbH are subject to change without notice with respect to price, amount, delivery deadlines and delivery options. The offer is seen as accepted if it isn’t rejected by Potsdamer Feuerwerk Vertriebs GmbH in writing within 4 weeks. Completion of delivery of the ordered goods is seen as acceptance of the offer. Supplements to the agreement with respect to acceptance of offer and changes thereof need to be confirmed in writing by Potsdamer Feuerwerk Vertriebs GmbH. We reserve the right to make substitutions to orders in the rare case of goods being unavailable. Additional conditions apply for private clients with respect to right of withdrawal.
§ 1.4
For purposes of credit verification , Potsdamer Feuerwerk Vertriebs GmbH is permitted to use the data available about your person with respect to address and creditworthiness of the Bürgel Wirtschaftsinformationen GmbH & Co. KG, PO Box 500 166, 22701 Hamburg, including information which was gathered on a mathematical and statistical method, if Potsdamer Feuerwerk Vertriebs GmbH has presented a justifiable interest.
§ 1.5
For the purpose of determination of cancellation or continuation of the agreement we determine and apply plausibility models, which also include data on address etc.

§ 2 Scope of delivery
§ 2.1
The information contained in brochures, mail shots or presentation contents are not guaranteed conditions. This also applies to material enclosed with the sent goods (pictures, drawings, information on weight and size) unless expressively stated as binding. Minor industry-typical deviations in size, colour and application do not constitute a right for objection from the buyer.

§ 3 Payment conditions
§ 3.1
The prices shown are off our storage facility in Berlin. The delivery is made for class II- / category 2-deliveries from € 400,- (or only class I- / category 1-deliveries from € 100,-) free of charge; below this amount we charge a freight cost contribution. For orders under € 50,-we charge an additional € 10,- for packaging. Subsequent deliveries are free of charge as long as tours can be bundled. For deliveries abroad, the buyer has to pay for customs and duties. Carriage paid (German border) for orders from € 750,-.
Delivery for class IV- / category 4 deliveries is free for orders from € 2.500,- , for orders below that amount we charge a carriage contribution . For orders below € 500,- we charge an additional € 15,- for packaging. Subsequent deliveries are free of charge as long as tours can be bundled. For deliveries abroad, the buyer has to pay for customs and duties. Carriage paid (German border) for orders from € 2.500,- .
Express delivery, hoisting platform charges, etc., are separately charged.
Class IV / category 4 items are only sent in line with regulations regarding carriage of explosives and with a valid qualifying certificate (§20 SrengG), or in connection with a permit (§7 or §27, Germany). Delivery in Austria only against documentation of a permit in line with §6, or for class III an authorization in line with §5 of the pyrotechnics legislation. The products may only be picked up from our facility by an authorized person with an appropriate vehicle. The respective permits and authorizations are to be provided by the byer (originals only).
German VAT is added to all quoted prices
§ 3.2
Unless otherwise agreed, issued invoices are to be paid upon receipt of goods. Part deliveries are to be seen as independent with respect to completion of payment duties.
§ 3.3
Payment is to be made within 30 days of receipt of goods.
§ 3.4
Bills of exchange will only be accepted after a special agreement is made and are only seen as payment made after the funds have been received by us.
§ 3.5
Potsdamer Feuerwerk Vertriebs GmbH is entitled, even if differently stipulated by the buyer, to calculated payments against older debts of the buyer, should they exist toward our company. If additional costs and interests have arisen, Potsdamer Feuerwerk Vertriebs GmbH is entitled to calculate these first towards the general costs, then to the interest and finally to the main charges for the delivered goods. No discounts are granted if payment is made on older, overdue balances.
§ 3.6
The buyer is not entitled to withhold payment because of counterclaims or recalculations, unless they are not contended by us or legally valid.
Upon issue of a new price list, the old prices automatically lose their validity.

§ 4 Liefer- und Leistungszeit, Verzögerungen
§ 4.1
Delivery deadlines are only legally binding after they have been confirmed in writing by Potsdamer Feuerwerk Vertriebs GmbH. An agreed deadline begins with the date of the order confirmation, but not before the buyer has fulfilled any and all possible obligations prior to the sale, especially if a down payment has been agreed upon. The same also applies if fixed dates for delivery have been agreed upon.
§ 4.2
For deliveries outside of Berlin, the delivery deadline is seen as met if the goods have left the Berlin warehouse of Potsdamer Feuerwerk Vertriebs GmbH by that day.
§ 4.3
As in general German legislature, therefore superfluous.
§ 4.4
Part deliveries of ordered goods are permissible as long as they don’t put unreasonable strain on the buyer.
§ 4.5
Situations of a Force Majeure nature will allow Potsdamer Feuerwerk Vertriebs GmbH – including during the delay – to postpone the delivery or display for the duration of the Force Majeure and an appropriate preparation time. In the event that the display needs to be cancelled by us due to bad weather or other circumstances beyond our reasonable control we will endeavour to agree with you an alternative date for the display. If an alternative date for the impossible to find, Potsdamer Feuerwerk Vertriebs GmbH has the right to withdraw partly or completely from the agreement. The client has no claim for compensation in these cases. Forces Majeure include strikes, lock-out, mobilization of the forces, war, blockades, im- and export prohibitions, official decrees, a dearth of raw materials or energy, fire, significant disruptions to the business or distribution system, or other inacceptable circumstances for the Potsdamer Feuerwerk Vertriebs GmbH which make delivery or staging of a display unreasonable, regardless of whether these circumstances occur at Potsdamer Feuerwerk Vertriebs GmbH itself, its suppliers or distribution partners.
§ 4.6
The buyer can demand an explanation from Potsdamer Feuerwerk Vertriebs GmbH, whether it wants to withdraw from the contractual agreement or deliver within a reasonable time frame. The demand must be made in writing. If Potsdamer Feuerwerk Vertriebs GmbH does not on demand explain, the buyer is entitle to withdraw from the agreement.
§ 4.7
If suppliers of Potsdamer Feuerwerk Vertriebs GmbH cease to do business with the company, whether through because of its own fault or external reasons, we are not obliged to acquire the ordered goods from a third party. In this case Potsdamer Feuerwerk Vertriebs GmbH is entitled to split existing amounts of goods in the appropriate order volume to the individual clients.

§ 5 Default of acceptance
§ 5.1
Due to the rules and regulations governing the sale and distribution laws regarding pyrotechnical goods, Potsdamer Feuerwerk Vertriebs GmbH expressively requests the buyer to provide and keep a binding date for delivery. This is in line with the obligation to co-operate stipulated by the German common law (§ 295 BGB). If the buyer does not respond to the appropriate demand for a possible delivery date, he/she is seen as in default of acceptance. The same applies if the buyer rejects the goods upon delivery. Should the buyer fail to provide a date in an additional time allowance of three days, or he rejects the actually offered goods to him after the new deadline, Potsdamer Feuerwerk Vertriebs GmbH is entitled to sue for damages or withdraw from the agreement.

§ 6 Cancellation
Under retention of the possibility the claim for higher damages, Potsdamer Feuerwerk Vertriebs GmbH is entitled to the following damages in case of cancellation through the buyer:

  • 15 % of the gross contractual value up to the time of commissioning of the ordered goods
  • 25 % of the gross contractual value after commissioning of the ordered goods up to the time of delivery to the delivering distributor
  • 35 % of the gross contractual value after the commissioned goods have been given to the distributor, as long as final delivery has not yet been made
  • 45 % of the gross contractual value, if the goods are not accepted by the buyer upon delivery, plus the typical local or documented transport costs

The buyer retains the right to document the Potsdamer Feuerwerk Vertriebs GmbH has not incurred any loss or only a minor loss through the action

§ 7 Consequences of default
§ 7.1
If Potsdamer Feuerwerk Vertriebs GmbH needs to postpone or change delivery dates or is itself delayed in delivering, the buyer is entitled to damages amounting to 1% of the gross contractual value for every full week the delivery is delayed, but not more than 10% of the invoice amount of the deliveries or services in question.
§ 7.2
There or no grounds for higher compensations than this, unless the delay is caused by gross negligence.

§ 8 Liability
§ 8.1
For damages and consequential harm caused by a defect from unauthorized activity, by pre-contractual, contractual or statutory ancillary duties, impossibility to perform a service or through delay, Potsdamer Feuerwerk Vertriebs GmbH is liable only if it is proven to have acted deliberately or with gross negligence , without prejudice to the regulation in the German legislation (§ 831 Absatz 1 Satz 2 BGB). This liability exclusion does not include injuries to life, body or health, or in case of an initial inability to fulfil the terms of an agreement, for the gross negligence of contractually agreed duties as long as it is for the liabilities of promised capacities (including such of consequential harm of which the affirmation is supposed to protect).
§ 8.2
In all cases liability is limited to damages incurred to contractually derived activities and damages incurred through them.

§ 9 Transfer of perils
§ 9.1
The danger of an accidental loss or damage to a shipment transfers to the buyer as soon as delivery to him/her or an authorized associate has been made.

§ 10 Reservation of property rights
§ 10.1
Until it is paid for in full, Potsdamer Feuerwerk Vertriebs GmbH will retain the property rights to any goods or services sold. The buyer is entitled to use the goods subject to retention in the normal cause of business and to sell them on as long as he/she is not late in payment. Pledging of goods or security transfer of title of the handed over goods is not permissible. Demands arisen through the selling-on or through another legal cause (unauthorized handling and insurance) of the reserved property, the buyer passes on for security reasons. The buyer is revocably entitled to claim payment for passed-on demands of the Potsdamer Feuerwerk Vertriebs GmbH in his own name. The debit authorization can be revoked if the buyer is negligent in his/her payment duties.
§ 10.2
In case of seizure, appropriation or other disposition through third parties, the buyer is obliged to inform about the existing property conditions and to notify Potsdamer Feuerwerk Vertriebs GmbH immediately.
§ 10..3 If the buyer acts contrary to the contract, especially when in default of payment, Potsdamer Feuerwerk Vertriebs GmbH is entitled to take back provisional goods, or, if, applicable, to demand that the buyer transfers title claims to third parties. The taking back or seizure of these goods does not, unless stipulated so in the German Remuneration Law (Abzahlungsgesetz), constitute a withdrawal from the contract and its obligations.

§11 Garantee
§11.1
If the ordered goods are faulty or are lacking promised properties, Potsdamer Feuerwerk Vertriebs GmbH will, under exemption of any other defects liability claims, to provide a subsequent delivery or a credit advice.
§11.2
The guarantee period towards business clients is one year and begins with the date of delivery.
§11.3
It is the buyer’s duty to check the delivered goods upon receipt for completeness and obvious damages incurred through transport. Possible shortfalls or damages have to be reported to the forwarding agent, who needs to document them. It is also the buyer’s duty to examine the goods immediately upon delivery. Obvious defects are to be communicated immediately, and no later than 7 days after receipt in written form. Defects which could, despite proper examination not be detected within this period but are discovered later, are to be communicated in writing immediately after discovery. The defective shipment is to be made available for inspection by Potsdamer Feuerwerk Vertriebs GmbH in the condition it was found when delivered. Contravention of these obligations leads to the disqualifation of guarantee rights. If a subsequent delivery is found to be defective too, or if it cannot be delivered within a reasonable time frame, then the buyer is entitled to reduce the buying price accordingly or to withdraw from the agreement.

§12 Applicable law, court of jurisdiction, partial nullity
§12.1
For all our terms of business and the entire relationship of privity between Potsdamer Feuerwerk Vertriebs GmbH and the buyer, the law of the Federal Republic of Germany applies.
§12.2
If the buyer is a registered trader in the sense of the German Trade Legislation, Potsdam will be the exclusive court of jurisdiction for all disputes deriving directly or indirectly from the agreement with the buyer.
§12.3 Should a clause in these terms of business be rendered invalid, it will not affect the validity of any of the other terms herein.

The following additional regulations apply to services (special effects, indoor and outdoor fireworks):
Order, cancellation

Enquiries will be met, free of charge, after sighting of the location (only area Berlin) and a personal consultation, with an offer. Further consultations, special visits to the authorities, coordination of third parties will be charge for at a reasonable rate if a contract is not made. Acceptance of our offer, subject to permits granted by the authorities, must be made in writing by the client. If our offer is accepted, a 50% down payment of the offer price is required. Cancellations must be made in writing and be confirmed by us.

  • Up to 14 days before the execution of an order, only the costs for sighting, possible costs at the authorities and the time need to obtain a permit for the event will be charged to the client in case of cancellation through the client. The costs will be on a level of that for a normal hourly rate for a pyro technician, plus typical vehicle costs.
  • A cancellation made up to 3 days before the event will be charged at 30% of the order value to the client plus the costs mentioned in the paragraph a) above .
  • A cancellation one up to one day before the event will be charged at 40% of the order value plus the costs mentioned in paragraph a).
  • Cancellations on the day of the event before set-up has begun will be charged at 70% of the order value plus the costs mentioned in paragraph a.
  • Cancellations after begin of set-up will be charge at 85% of the order value plus the costs mentioned in paragraph a).
  • Cancellations or impossibility to perform the event due to unforeseeable incidents beyond our control do not release the buyer from his/her duty to pay.

Special orders such as light symbols and services given by third parties whom we hired will be charged at 100%. For a subsequent performance of a same firework display which is put on within 8 weeks we grant a 30% discount on the following cancellation costs. (less advanced fees and third party costs).

If the firework display is not executed due to other reasons to be specified by the client, the client is obliged to pay Potsdamer Feuerwerk Vertriebs GmbH the agreed upon price minus any costs which we may have saved. The same applies if the execution of the display cannot be done because of bad weather. The decision as to whether the weather conditions warrant a cancellation of the event (e.g. a storm, forest fire warnings), other conditions of safety-relevant (e.g. for the persons in the safety areas) is in the hands of the executing pyro technician. Interferences of the display due to bad weather and production of smoke constitute no ground for compensation against Potsdamer Feuerwerk Vertriebs GmbH.

Should permits from authorities needed for the display not be given, for reasons beyond our control, Potsdamer Feuerwerk Vertriebs GmbH is subsequently released from its contractual obligations.

Should a client bear responsibility for the failure to obtain certain permits from authorities (e.g. documentations or permits which have been handed in too late, incompletely or not at all), Potsdamer Feuerwerk Vertriebs GmbH will be entitled to charge cancellation fees in line with the above-mentioned fees but at least at 50% of the overall order value. We retain the right to claim in full should higher damages have been incurred.

Payment conditions
Bases are our prices given in the order confirmation plus VAT. Damages caused by us do not entitle the client to withhold payment but are to be settled with our insurance. Damages are to be reported to us within 48 hours of the fireworks display, damages reported after this time may be exempt from our liability. In the client defaults on payment or other contractually agreed actions (e.g. provision of electricity or water, help staff or cordoning off areas), we are released from our contractual duties. In this case the cancellation rules apply.
Potsdamer Feuerwerk Vertriebs GmbH will, by order and on behalf of the client, obtain required permits for the set-up and execution of a display from the authorities. All costs incurred in the pursuit of this duty, as well as any costs for the adherence to conditions imposed by the authorities and the necessary safety precautions are to be borne by the buyer. Any costs incurred through usage of certain media and related copyright fees (e.g. from the German GEMA) are to be borne by the client.

Delivery in due time
Our client is entitled to the goods and services from us within the time period prescribed. For a fireworks display that is not put on due to our fault, the client is entitled to a full refund. In this case, we also carry the costs incurred through obtaining authority permits. Further claims (financial loss, contractual penalty) are excluded.
Potsdamer Feuerwerk Vertriebs GmbH reserves the right to apply changes necessitated through technical reasons or reasons concerning the obtaining of permits.

Duties of the client
The client is to provide, free of charge, a location to Potsdamer Feuerwerk Vertriebs GmbH in order to execute the fireworks display, and is to make sure that no unauthorized third party has access to the location for the period.
The client is obliged, at his or her own expense, to provide the officially required safety zone, to cordon it off and supervise that it’s being observed.
The client is obliged, at his or her own expense, to complete statutory requirements, unless they are of pyrotechnical nature.
The client is obliged, at his or her own expense, to clean the location after the firework, and to discharge Potsdamer Feuerwerke from any obligations or demands by a possible third party owner of the location. A primary cleaning will be undertaken by us.
Independent of the fact that Potsdamer Feuerwerk Vertriebs GmbH has provided the legally required insurance cover, the client is obliged to take out an own accident and liability insurance under inclusion of the firework risk.
The client is obliged to provide Potsdamer Feuerwerk Vertriebs GmbH with all document needed by us as well as the necessary agreements from adjacent owners 18 days prior to the event at the latest.

The client is to provide access to the site to the pyro technician in charge and his team at the agreed time. For outdoor fireworks, the site must be made accessible to our team, and held exclusively for the set-up and display. The decision as to what persons are allowed within the safety area is down to Potsdamer Feuerwerk Vertriebs GmbH and/or her assistants.

On the display site, the preparation area and indoors at the display areas, a complete prohibition of smoking is to be observed. The client is to enforce this or have it be enforced by a third party.

The display site and the involved materials (e.g. decorative fabrics, etc.) may only be removed or utilized after obtaining permission from the pyro technician in charge. The cleaning of the display site and its environs is the duty of the client.

The client is to make sure that, in case of indoor fireworks, from beginning of set-up to the actual display, the ambient temperature does not fall below 18° Celsius, and the relative humidity does not exceed 70%.

The recording and use of our pyrotechnical effects for commercial purposes beyond the agreed upon event needs our express written permission. This may be given under reserve of payment of the contractually agreed sum, and be withdrawn in cause of payment default. Copyrights on the concept of the display are not transferred.

Legal duties
Or the execution of our services, the respective legislation regarding pyrotechnics, local emissions regulations, accident prevention laws (and in Germany ADR, and ADNR) are to be observed. Our technicians are subject to the control of the appropriate authorities. Should the display not be possible to set off due to safety reasons, we are entitled to refuse executing a display, providing the reasons for our decision.

Addendum

Supplementary to our general terms of business, the following regulations for consumers apply in line with the §3 of the German Distance Selling Act (Fernabsatzgesetz) : a) In contracts with the Potsdamer Feuerwerk Vertriebs GmbH, the user is not bound to his contractual declaration of intent if he/she has revoked it in time. The retraction does not need to contain a reasoning, but must be made in writing, on a lasting data storage device, by email or by sending the delivered goods within two weeks back to us, the deadline for this is seen as met by the timely dispatch of the goods..
The retraction is to be sent to the address listed in the imprint of our website.
The deadline for retraction begins at the point of delivery of the goods and but not before it has reached the buyer. Alternatively it starts with the receipt of the retraction notice of the client.
Having retracted from the agreement within the time frame, the user is obliged to send the goods back to us at our peril and costs. Up to a total sum of 40 euros the client is to bear the costs of returning the goods him/herself, unless the ordered goods are not as specified in the order confirmation.
Potsdamer Feuerwerk Vertriebs GmbH will, after receipt of the returned goods, return immediately any payments already made by the buyer, on a delivery versus payment basis.

For the relinquishment of the use of a good as well as other services up to the execution of the right of withdrawal, their value is to be reimbursed; the normal depreciation in value of a good or service shall be disregarded. Further entitlements are not recognized.

__________________________________________________

Right of revocation
You can cancel the agreement with us within 14 days without the need to provide reasons (by letter, fax, email) in writing or – if the good(s) have been sent to you before the end of the cancellation deadline, by returning them to us. The time frame for this starts after receipt of this information, but not before the buyer has received the goods (for repeat orders of the same kind not before receipt of the first part-delivery) and also not before we have fulfilled our information duties towards you in line with Artikel 246 § 2 in connection with § 1 Abs. 1 and 2 EGBGB (German legislature). To be within the period of cancellation, it is sufficient to despatch the goods in question. The revocation is to be addressed to:

Potsdamer Feuerwerk Vertriebs GmbH
Rigistr. 8
12277 Berlin

Consequences of revocation
In case of a valid revocation, the already received goods or services are to be returned by both parties and possible benefits derived (e.g. interest) is to be handed out. If you are unable to return goods whole or only in worse condition, we are entitled to demand reimbursement for this. On return of goods this does not apply, if the worsening of condition is solely due to checking the goods – if you weren’t able to do so in the shop. You can also avoid a duty to reimburse us for the correct use of a good if you do not treat the good like your property and refrain from doing anything that could decrease its value. Goods which can be sent in a package can be returned to us at our costs and peril. Goods which can’t be sent like this will be collected from you. Payment duties are to be fulfilled within 30 days. The deadline starts for you at the sending of your right of revocation to us, or the good, and for us upon receipt of the same.

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