GENERAL TERMS & CONDITIONS​

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MOUTH Propaganda GmbH I As of March 2021

 

*§ 1 Scope*

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(1) All deliveries, services, and offers by MOUTH Propaganda GmbH (hereinafter also referred to as “Seller”) are made exclusively on the basis of these General Terms and Conditions. These are part of all contracts concluded between the Seller and its contractual partners (hereinafter also referred to as “Client”) concerning the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services, or offers to the Client, even if they are not expressly agreed again.

 

(2) The Client’s or third parties’ terms and conditions shall not apply, even if the Seller does not expressly object to their validity in individual cases. Even if the Seller refers to a letter that contains or refers to the Client’s or a third party’s terms and conditions, this does not constitute consent to their application.

 

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*§ 2 Offer and Conclusion of Contract*

 

(1) All offers made by the Seller are non-binding and subject to change unless they are expressly marked as binding or contain a specific acceptance period. Orders or assignments may be accepted by the Seller within fourteen (14) days of receipt.

 

(2) The written purchase contract, including these General Terms and Conditions of Delivery, shall be solely authoritative for the legal relationships between Seller and Client. This reflects all agreements between the contracting parties regarding the contractual subject matter in full. Oral promises made by the Seller before the conclusion of this contract are legally non-binding, and oral agreements between the contracting parties are replaced by the written contract unless it is expressly stated that they remain binding.

 

(3) Amendments and additions to the agreements made, including these General Terms and Conditions, require written form to be effective. Except for managing directors or authorized signatories, employees of the Seller are not authorized to make oral agreements deviating from the written agreement. Transmission via telecommunication (fax or e-mail) suffices for maintaining written form if a copy of the signed declaration is transmitted.

 

(4) Descriptions provided by the Seller regarding the subject of the delivery or service (e.g., weights, measurements, usability values, load capacities, tolerances, and technical data) as well as representations of these (e.g., drawings and illustrations) are only approximate, unless exact conformity is necessary for the intended contractual purpose. They do not constitute guaranteed characteristics but are descriptions or identifications of the delivery or service. Commercial deviations and deviations that occur due to legal regulations or technical improvements, as well as the replacement of components with equivalent parts, are permissible provided they do not impair usability for the intended contractual purpose.

 

(5) The Seller retains ownership or copyright of all offers, cost estimates, drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids provided to the Client. The Client may not, without the express consent of the Seller, disclose, reproduce, or use these either as such or in content, or make them accessible to third parties. Upon the Seller’s request, these items must be fully returned and any copies destroyed if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Storage of electronically provided data for routine data backup is exempted.

 

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*§ 3 Prices and Payment*

 

(1) Prices and due dates apply to the scope of services and deliveries specified in the order confirmation. Additional or special services will be charged separately. Prices are stated in EUR ex works, plus packaging, applicable VAT, export duties, fees, and other public charges.

 

(2) If the Seller’s list prices form the basis of the agreed prices and delivery is to occur more than four months after contract conclusion, the list prices valid at the time of delivery shall apply.

 

(3) Invoice amounts are payable without any deduction within seven days unless otherwise agreed in writing. The date of receipt by the Seller is decisive for payment. Payment by check is excluded unless specifically agreed upon. If the Client fails to pay when due, outstanding amounts shall bear interest at 5% per annum from the due date; the assertion of higher interest and further damages in the event of default remains unaffected.

 

(4) The Client may only set off claims or withhold payments based on counterclaims if these are undisputed, legally established, or arise from the same contractual relationship.

 

(5) The Seller may demand advance payment or security for outstanding deliveries or services if circumstances arise after the contract conclusion that significantly reduce the Client’s creditworthiness and jeopardize the Seller’s payment claims under the respective contractual relationship.

 

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*§ 4 Delivery, Delivery Time*

 

(1) Deliveries are ex works.

 

(2) Delivery and performance dates stated by the Seller are always approximate unless expressly agreed as binding. If dispatch has been agreed, delivery periods and dates refer to the time of handover to the freight forwarder or carrier.

 

(3) The Seller may demand an extension of delivery or performance deadlines or a postponement of delivery or performance dates if the Client fails to meet its contractual obligations.

 

(4) The Seller shall not be liable for impossibility or delays caused by force majeure or unforeseeable events at the time of contract conclusion (e.g., operational disruptions, procurement difficulties, strikes, lockouts, shortages, governmental measures, delayed or failed deliveries by suppliers), which are beyond the Seller's control. If such events significantly hinder or make delivery impossible and are not merely temporary, the Seller may withdraw from the contract. For temporary obstacles, deadlines shall be extended by the duration of the obstacle plus a reasonable lead time. If acceptance becomes unreasonable for the Client due to delay, the Client may withdraw from the contract by written declaration.

 

(5) Partial deliveries are permitted if usable for the Client’s intended contractual purpose, the remaining delivery is secured, and no significant additional effort or costs arise for the Client.

 

(6) If the Seller is in default or delivery becomes impossible, liability for damages is limited as specified in § 8 of these Terms and Conditions.

 

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*§ 5 Place of Performance, Shipping, Packaging, Transfer of Risk, Acceptance*

 

(1) Place of performance is Cologne, unless otherwise agreed.

 

(2) Shipping method and packaging are at the Seller's discretion. If frozen products are delivered, special transport packaging (dry ice) or frozen transport will be used. The Client must observe safety instructions for handling dry ice (CO₂ granulate). Children must not handle or touch dry ice.

 

(3) Risk passes to the Client at the latest upon handover to the carrier. If dispatch is delayed for reasons attributable to the Client, risk transfers upon notification of readiness for dispatch. The Client must ensure continuous maintenance of the cold chain at -18°C during storage.

 

(4) The Client bears storage costs after risk transfer. For storage by the Seller, the charge is 0.25% of the invoice amount per week. Proof of higher or lower costs remains reserved.

 

(5) The Seller insures the shipment only upon the Client’s express request and at the Client’s expense.

 

(6) Where acceptance is required, the goods are deemed accepted if:

 

* delivery is complete,

* twelve business days have passed after delivery or six days after use of the goods without justified refusal, unless due to a notified defect that makes use impossible or substantially impairs it.

 

(7) If acceptance is delayed and frozen goods are involved, only one delivery attempt will be made due to product sensitivity. The Seller may charge lump-sum compensation of 5% of the lost net revenue. Proof of lesser damage remains permitted.

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*§ 6 Warranty for Defects*

 

(1) The warranty period is one year from delivery or acceptance. This does not apply to damages from injury to life, body, or health, or willful or grossly negligent breaches by the Seller.

 

(2) The delivered goods must be carefully inspected immediately upon delivery. Frozen products must be stored properly at -18°C until inspection. Obvious defects must be reported in writing within three business days, other defects within seven business days after discovery.

 

(3) In case of defects, the Seller may choose repair or replacement. If this fails, the Client may withdraw from the contract or reduce the purchase price.

 

(4) If the defect is due to the Seller's fault, damages may be claimed under § 8.

 

(5) For components from other manufacturers, the Seller may assert claims against such manufacturers or assign them to the Client. Claims against the Seller only exist if legal action against the manufacturer fails.

 

(6) Warranty is void if the Client alters the goods without Seller's consent, unless the defect was not caused or worsened thereby.

 

(7) Sales of used goods are made without warranty.

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*§ 7 Intellectual Property Rights, Specifications, and Client Cooperation*

 

(1) The Seller ensures that the goods are free from third-party rights only if the Client confirms in writing that it holds such rights. The Client provides specifications, content, and materials (texts, images, logos) to be incorporated into the product.

 

(2) If third-party rights are infringed, the Seller may modify or replace the product or obtain licenses. If unsuccessful, the Client may withdraw or demand price reduction. Damages are limited under § 8.

 

(3) For products of other manufacturers, the Seller may assert claims or assign them to the Client if enforcement fails.

 

(4) For ice cream products, the imprint "MOUTH Propaganda" will appear on the stick.

 

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*§ 8 Liability for Damages*

 

(1) The Seller’s liability for damages, regardless of legal grounds, is limited according to this § 8.

 

(2) The Seller is not liable for simple negligence unless it concerns essential contractual obligations (timely delivery, freedom from legal and material defects, essential protection duties).

 

(3) If the Seller is liable under § 8(2), liability is limited to foreseeable damage. Indirect and consequential damages are only reimbursed if typical for the contract.

 

(4) In case of simple negligence, compensation for property damage and consequential financial losses is limited to EUR 5,000 per case.

 

(5) These limitations apply equally to the Seller's officers, representatives, employees, and vicarious agents.

 

(6) Technical advice given outside the contractual scope is non-binding and liability-free.

 

(7) These limitations do not apply to intentional misconduct, guaranteed characteristics, injury to life, body, or health, or liability under the Product Liability Act.

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*§ 9 Retention of Title*

 

(1) The agreed retention of title secures all present and future claims of the Seller against the Client.

 

(2) The delivered goods remain the Seller’s property until full payment (the “Retained Goods”).

 

(3) The Client stores the Retained Goods free of charge.

 

(4) The Client may process or resell the Retained Goods in the ordinary course of business. Pledging or transferring as security is prohibited.

 

(5) If processed, the Seller gains (co-)ownership proportional to the Retained Goods’ value. If combined or inseparably mixed with other items, proportional co-ownership arises.

 

(6) Claims arising from resale or replacement are assigned to the Seller for security. The Client may collect these claims unless revoked.

 

(7) If third parties seize the Retained Goods, the Client must inform them of the Seller’s ownership and notify the Seller.

 

(8) The Seller will release security if its value exceeds secured claims by more than 50%.

 

(9) Upon contract breach (especially payment default), the Seller may demand return of the Retained Goods.

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*§ 10 Final Provisions*

 

(1) If the Client is a merchant or legal entity under public law, jurisdiction lies in Cologne or the Client’s registered office, at the Seller’s discretion. Cologne shall be exclusive for lawsuits against the Seller.

 

(2) German law applies exclusively; the UN Sales Convention (CISG) is excluded.

 

(3) In case of contractual gaps, legally effective provisions that fulfill the contract’s economic purpose shall apply.

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