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General Terms of Sale of Sound Service Musikanlagen-Vertriebsgesellschaft mbH for transactions with entrepreneurs


Art. 1 Scope of application

(1)These terms of sale of Sound Service Musikanlagen-Vertriebsgesellschaft mbH shall apply solely towards entrepreneurs, legal persons under public law or special funds under public law according to section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB).

(2) We hereby refute the terms of purchase of the entrepreneur. We shall only acknowledge terms of the entrepreneur that conflict with or are divergent from our terms of sale if we expressly confirm their application in writing. Our unconditional performance of an order despite our knowledge of conflicting terms of purchase shall not imply our consent.

(3) These general terms of sale shall also apply to all future transactions with the entrepreneur insofar as they are legal transactions of a related nature.

Art. 2 Offer and conclusion of a contract

Our offers shall always be non-binding. If an order can be deemed an offer according to section 145 BGB, we may accept it within two weeks. We shall accept all orders only subject to the proviso that we receive the goods correctly and promptly from our own suppliers.

Art. 3 Provided documents

We reserve ownership and copyrights to all documents provided to the entrepreneur in the context of placement of an order such as calculations, drawings, etc. Such documents may not be made accessible to third parties unless we give the entrepreneur our express written consent. If we do not accept the entrepreneur‘s offer within the term specified in Art. 2, these documents shall be returned to us without delay.

Art. 4 Prices, payment, due date

(1) Unless otherwise agreed in writing, our prices are quoted ex our registered place of business exclusive of packaging and plus the statutory rate of value added tax. Costs for shipping as well as for environment, packaging and insurance (EPI-Rate) will be invoiced separately on a pro rata basis.

(2) The purchase price shall be paid exclusively to the account specified in the invoice. The deduction of a discount shall only be permissible where specifically agreed to in writing.

(3) Unless otherwise agreed, the purchase price shall be payable within 7 days of the invoice date. Default interest shall be charged at a rate of 8 per cent over the respective base interest rate p.a. We reserve the right to claim higher default damages.

(4) If the entrepreneur defaults on payment or if there are justified doubts as to his creditworthiness, we may demand the immediate payment of all outstanding debts.

(5) Unless a price has been fixed, we reserve the right to make reasonable price adjustments due to changes in wage, material and distribution costs for deliveries that are effected 3 months after conclusion of the contract or later.

Art. 5 Rights of set-off and retention

The entrepreneur shall only have the right to set off claims, if his counterclaims are confirmed by a final judgment, are ready for decision or undisputed. The entrepreneur shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contract.

Art. 6 Delivery term

(1) The delivery term specified by us shall only commence once the entrepreneur has duly and properly fulfilled his obligations. We reserve the defence of non-performance of the contract in respect of all of our claims.

(2) If the entrepreneur defaults on acceptance or culpably violates other co-operation duties, we shall be entitled to demand compensation for any resulting damage incurred to us including any extra expenses. We reserve the right to assert further claims. If the aforesaid conditions are met, the risk of accidental loss or accidental deterioration of the goods shall pass to the entrepreneur at the point in time when the entrepreneur defaults on acceptance or payment of debts.

(3) We shall not be liable for a delay in delivery that is not caused by a wilful act or gross negligence on our part.

(4) Any further statutory claims and rights of the entrepreneur due to a delay in delivery shall not be affected.

(5) We shall also have the right to deliver in instalments.

Art. 7 Passage of risk on dispatch

If the goods are sent to the entrepreneur at the entrepreneur’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the entrepreneur on dispatch to the entrepreneur, but no later than on departure from the warehouse. This shall apply regardless of whether the goods are dispatched from the place of performance and of who bears the freight costs.

Art. 8 Retention of title

(1) We shall retain title to the respectively delivered goods until the full payment of all receivables owed to us under the business relationship (reserved goods). This shall also apply to all future deliveries, even if we do not always expressly refer to the retention of title. We shall be entitled to take back the respective reserved goods if the entrepreneur acts in violation of the contract.

(2) The entrepreneur shall treat the reserved goods with care until title passes to him. In particular, he shall insure them at his own expense against damage by theft, fire and water, the insured sum being adequate to cover the replacement value. Should maintenance and inspection work be necessary, it shall be performed by the entrepreneur in due time and at his own expense. Until title passes, the entrepreneur shall notify us without delay in writing if the delivered reserved goods are lost, seized or are exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of legal action according to section 771 of the Code of Civil Procedure (Zivilprozessordnung – ZPO), the entrepreneur shall be liable for the loss sustained by us.

(3) The entrepreneur shall be entitled to resell the reserved goods in the ordinary course of business. Other dispositions regarding the reserved goods, in particular pledging or assignment by way of security, shall not be permitted. As long as the retention of title exists, the reserved goods delivered by us within the territory of the Federal Republic of Germany may not be exported from the territory of the Federal Republic of Germany without our prior written consent.

(4) The entrepreneur here and now assigns to us the receivables owing to the entrepreneur from the re-sale of the reserved goods in the amount of the final invoice total agreed with us (including VAT). We accept the respective assignment. This assignment shall apply regardless of whether the reserved goods have been resold without or after further processing. The entrepreneur shall remain authorised to collect the receivables even after the assignment. This shall not affect our authority to collect the receivables ourselves. However, we shall not collect the receivables as long as the entrepreneur meets his payment obligations from the collected proceeds, is not in default of payment, and, in particular, as long as no action has been filed for insolvency and as long as payment has not ceased and the entrepreneur is not in excessive debt.

(5) In the event of a default in payment the receivables owing from the third party shall additionally be assigned to us beyond the amount of the purchase price up to the additional amount of the damage caused to us by the default. We hereby accept this assignment. In the case of default we shall be entitled to notify the third party immediately of the assignment and to collect the receivables. In the event of a default in payment we shall be entitled, even without exercising our right of cancellation and without setting a grace period, to demand the provisional surrender of the goods to which we hold title at the entrepreneur’s expense. Our request for surrender shall not constitute a cancellation of the contract, unless we have expressly declared such cancellation. Subject to prior notice, we shall be entitled to dispose otherwise over the surrendered delivery and to provide the entrepreneur with a new delivery after payment.

(6) Any treatment, processing, or modification of the reserved goods by the entrepreneur shall always be effected in our name and on our behalf. In this case, the entrepreneur’s expectant right to the reserved goods shall be carried over to the remodelled item. If the reserved goods are processed together with other items not owned by us, we shall acquire co-ownership of the new item in the ratio of the objective value of our reserved goods to the other processed items at the time of processing. The same shall apply if the reserved goods are mixed with others. If they are mixed in such a manner that the item of the entrepreneur is to be regarded as the main item, it shall be agreed that the entrepreneur shall assign proportionate co-ownership to us and shall keep the thus created sole property or joint property in safe custody for us. To secure our claims against the entrepreneur, the entrepreneur shall also assign to us any claims against third parties that arise to the entrepreneur as a result of the incorporation of the reserved goods in real property; we hereby already accept this assignment.

(7) We commit to release the securities we are entitled to if their value exceeds that of the claims to be secured by more than 20 per cent at the entrepreneur’s request.

Art. 9 Liability for defects, notice of defects as well as recourse/ manufacturer’s recourse

(1) If the entrepreneur is a merchant, we shall in any case only accept liability for defects if the entrepreneur inspects the goods for defects without delay but at the latest within 7 days after receipt of the goods. The entrepreneur must notify us of all obvious defects without delay. The entrepreneur must notify us of any hidden defect without delay, but no later than 5 days after its discovery. Any notice of defects must be given by the entrepreneur in writing. The entrepreneur’s notice of defects must specify the respective goods and the respective defect of the goods. To meet the deadline, the notice of defects must reach us in due time. If the entrepreneur gives no notice of defects, the goods shall be considered delivered in accordance with the contract.

(2) The limitation period for defects claims is 12 months after completed delivery of the goods supplied by us to the entrepreneur. This shall not apply in cases where the law prescribes longer periods as mandatory according to section 438 (1) (2) BGB (buildings and objects for buildings), section 479 (1) BGB (recourse claims) and section 634a (1) BGB (construction defects). Our consent must be obtained prior to any return of goods.

(3) If, despite all care taken, the delivered goods exhibit a defect that already existed at the time of passage of risk, we shall, at our choice, either repair the goods or supply replacement goods, provided that the notice of defects was given in due time. We must always be given the opportunity to render subsequent performance within a reasonable time. Subsequent performance shall only be considered unsuccessful after the third failed attempt. The above provision shall not affect recourse claims in any way.

(4) If subsequent performance should be unsuccessful, the entrepreneur –without prejudice to any claims for damages – may cancel the contract or reduce the purchase price.

(5) No claims for defects may be asserted if the condition of the goods deviates only slightly from the agreed quality, if usability is only slightly affected or in cases involving natural wear and tear or damages occurring after the risk has passed as a result of erroneous or negligent treatment, excessive use, unsuitable production equipment or due to special external impacts which are not provided for in the contract. No claims for defects may be asserted for incompetent repair work or modifications performed by the entrepreneur or third parties or the resulting consequences.

(6) Claims of the entrepreneur due to necessary expenses for the purpose of subsequent performance, particularly transport, travel, labour, and material costs, shall be ruled out, insofar as such expenses increase due to the goods supplied by us being subsequently transported to a location other than the entrepreneur’s place of business, unless such transport is consistent with the goods’ intended use.

(7) The entrepreneur may only assert rights of recourse against us insofar as the entrepreneur has entered into no agreements that go beyond mandatory statutory claims for defects. Moreover, art. 9 (6) shall apply to the scope of the entrepreneur’s rights of recourse correspondingly.

(8) In the event of fraudulent concealment of a defect or in the event that a warranty is given for the condition of the goods at the time of passage of risk according to section 444 BGB (declaration of the seller that the object of purchase has a certain quality on passage of risk and acceptance of strict liability by the seller for all consequences resulting from the absence of such quality) the entrepreneur’s rights shall be subject exclusively to the statutory provisions.

(9) We shall provide no warranty to the entrepreneur that exceeds the statutory liability for defects, unless a warranty is expressly designated by us as such. Warranties towards third-party end consumers shall constitute no warranties towards the entrepreneur.

(10) No liability for defects shall apply in the case of a sale of used goods.

Art. 10 Liability

(1) Claims for damages asserted by the entrepreneur shall be ruled out. This shall not include claims of the entrepreneur for damages arising from injury to life, body or health or the violation of major contractual obligations as well as liability for other damages caused by a wilful or grossly negligent violation of obligations by us, our legal representatives or vicarious agents. Major contractual obligations are those of which the fulfilment is necessary to achieve the purpose of the contract.

(2) Claims for damages for the violation of major contractual obligations shall, however, be limited to contract-typical, predictable damages caused by ordinary negligence, unless the entrepreneur claims damages arising from injury to life, body or health.

(3) The restrictions in paragraphs (1) and (2) shall also apply in favour of our legal representatives and vicarious agents, if claims are asserted directly against them.

(4) The provisions of the Product Liability Act (Produkthaftungsgesetz) shall not be affected.

Art. 11 Miscellaneous

(1) This contract and the entire legal relationship between the parties shall be governed exclusively by the law of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) The place of performance and, on condition that the entrepreneur is a merchant, exclusive legal venue for all disputes arising from this contract shall be our registered place of business, unless otherwise specified in the order confirmation.

(3) Any changes or additions hereto shall require written form. This shall also apply to changes to this written form requirement. No oral covenants have been made hereto.

(4) If any provision hereof should be or become ineffective or contain a loophole, this shall not affect the validity of the remaining provisions. The parties undertake to replace the ineffective provision with a legally admissible provision that most closely corresponds to the economic purpose of the invalid provision or fills this loophole.

General terms of sale of Sound Service Musikanlagen-Vertriebsgesellschaft mbH for transactions with non-entrepreneurs (buyer is a consumer)


Art. 1 Offer and conclusion of a contract

The order signed by the consumer is a binding offer. We may accept this offer within two weeks by sending an order confirmation or by sending the ordered goods within this term.

Art. 2 Provided documents

We reserve ownership and copyrights to all documents provided to the consumer in the context of placement of an order such as calculations, drawings, etc. Such documents may not be made accessible to third parties unless we give the consumer our express written consent. If we do not accept the consumer‘s offer within the term specified in Art. 1, these documents shall be returned to us without delay.

Art. 3 Prices and Payment

(1) The purchase price shall be paid exclusively to the account specified in the invoice. The deduction of a discount shall only be permissible where specifically agreed to in writing.

(2) Unless otherwise agreed, the purchase price shall be payable within 7 days of the invoice date. Default interest shall be charged at a rate of 5 per cent over the respective base interest rate p.a. We reserve the right to claim higher default damages. In the event that we claim higher default damages, the consumer has the possibility to prove that the claimed default damages did not arise at all or arose in an at least substantially lesser extent.

Art. 4 Rights of set-off and retention

The consumer shall only have the right to set off claims, if his counterclaims are confirmed by a final judgment or undisputed. The consumer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contract.

Art. 5 Delivery term

(1) The delivery term specified by us shall only commence once the consumer has duly and properly fulfilled his obligations. We reserve the defence of non-performance of the contract.

(2) If the consumer defaults on acceptance or culpably violates other co-operation duties, we shall be entitled to demand compensation for any resulting damage incurred to us including any extra expenses. We reserve the right to assert further claims. The consumer shall, for his part, have the right to prove that the damages did not arise in the claimed amount at all or arose in an at least substantially lesser extent. The risk of accidental loss or accidental deterioration of the goods shall pass to the consumer at the point in time when the consumer defaults on acceptance or payment of debts.

(3) We shall not be liable for a delay in delivery that is not caused by a wilful act or gross negligence on our part.

(4) Any further statutory claims and rights of the consumer due to a delay in delivery shall not be affected.

Art. 6 Retention of title

(1) We shall retain title to the delivered goods until the full payment of all receivables owed to us under the transaction (reserved goods).

(2) The consumer shall treat the reserved goods with care until title passes to him. In particular, he shall insure them at his own expense against damage by theft, fire and water, the insured sum being adequate to cover the replacement value. Should maintenance and inspection work be necessary, it shall be performed by the consumer in due time and at his own expense. Until title passes, the consumer shall notify us without delay in writing if the delivered reserved goods are lost, seized or are exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of legal action according to section 771 of the Code of Civil Procedure (Zivilprozessordnung – ZPO), the consumer shall be liable for the loss sustained by us.

(3) Any treatment, processing, or modification of the reserved goods by the consumer shall always be effected in our name and on our behalf. In this case, the consumer’s expectant right to the reserved goods shall be carried over to the remodelled item. If the reserved goods are processed together with other items not owned by us, we shall acquire co-ownership of the new item in the ratio of the objective value of our reserved goods to the other processed items at the time of processing. The same shall apply if the reserved goods are mixed with others. If they are mixed in such a manner that the reserved good of the consumer is to be regarded as the main item, it shall be agreed that the consumer shall assign proportionate co-ownership to us and shall keep the thus created sole property or joint property in safe custody for us. To secure our claims against the consumer, the consumer shall also assign to us any claims against third parties that arise to the consumer as a result of the incorporation of the reserved goods in real property; we hereby already accept this assignment.

(4) We commit to release the securities we are entitled to if their value exceeds that of the claims to be secured by more than 20 per cent at the consumer’s request.

Art. 7 Liability for defects and Notice of defects

(1) The buyer must notify us of any obvious defects within 14 days from delivery of the contractual object in writing.

(2) The consumer may choose whether subsequent performance is to be effected by rectification or delivery of a replacement. However, we shall have the right to refuse the manner of subsequent performance chosen by the consumer, if it is only possible at an unreasonable expense and the other manner of subsequent performance remains without significant disadvantages for the consumer. During subsequent performance any reduction of the purchase price or cancellation of the contract by the consumer shall be ruled out. A rectification shall be deemed unsuccessful after a failed second attempt, if nothing to the contrary arises based on the nature of the item or defect or other circumstances in particular. If the subsequent performance is unsuccessful or if we have refused subsequent performance altogether, the consumer may, at his discretion, demand a reduction of the purchase price (reduction) or declare his cancellation of the contract.

(3) The consumer may only claim damages based on the defect if the subsequent performance has been unsuccessful or if we have refused subsequent performance. The right of the consumer to assert further claims for damages subject to the conditions below shall not be affected.

(4) The warranty period shall be 2 years, starting from the passage of risk (in the case of used items one year, starting from the passage of risk). This period shall also apply to compensation claims for consequential damages caused by a defect, as long as no claims are asserted due to unlawful acts.

Art. 8 Liability

(1) Claims for damages asserted by the consumer shall be ruled out. This shall not include claims of the consumer for damages arising from injury to life, body or health or the violation of major contractual obligations as well as liability for other damages caused by a wilful or grossly negligent violation of obligations by us, our legal representatives or vicarious agents. Major contractual obligations are those of which the fulfilment is necessary to achieve the purpose of the contract.

(2) Claims for damages for the violation of major contractual obligations shall, however, be limited to contract-typical, predictable damages caused by ordinary negligence, unless the consumer claims damages arising from injury to life, body or health.

(3) The restrictions in paragraphs (1) and (2) shall also apply in favour of our legal representatives and vicarious agents, if claims are asserted directly against them.

(4) The provisions of the Product Liability Act (Produkthaftungsgesetz) shall not be affected.

Art. 9 Miscellaneous

(1) This contract and the entire legal relationship between the parties shall be governed exclusively by the law of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) If any provision hereof should be or become ineffective or contain a loophole, this shall not affect the validity of the remaining provisions.

 

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