1.1 Our deliveries, services and offers are done exclusively on basis of these Terms and Conditions of business. They shall apply also to all future business dealings. Any conflicting confirmations of the buyer in reference to his terms and conditions of business are herewith contested. Any different terms and conditions of business of the contract partner shall only apply if this has been agreed in writing between the parties.
1.2 Claims of the buyer against us may only be assigned to third parties with prior agreement.
1.3 Agreements or assurances prior to or after conclusion of a contract shall only be effective if agreed in writing.
1.4 Exclusively the law of the Federal Republic of Germany shall apply for all legal matters.
1.5 The place of fulfilment is Geithain for both contract parties.
1.6 The exclusive place of jurisdiction for all current and future claims from the business relationship, including foreign exchange and cheque claims, is Geithain, insofar as the contract partner is a merchant, a legal entity under public law or a public law special fund. This place of jurisdiction also applies if the buyer has no general place of jurisdiction in Germany, has moved his domicile or habitual residence abroad or his domicile or habitual residence is not known at the time of filing of the claim.
2 Delivery, Delivery Dates and Risk Transfer
2.1 Any technically necessary construction or finishing amendments as well as deviation from samples remain reserved, insofar as these are reasonable for the buyer.
2.2 Partial deliveries are permissible and can be invoiced separately.
2.3 The delivery date shall be determined when the buyer provides the documents he has to procure, the authorisations, releases, and he pays an agreed deposit. It is adhered to if prior to expiry the product for delivery has left the warehouse or the notification has been given of the willingness to deliver.
2.4 The delivery date is delayed appropriately in cases of strikes and the occurrence of unforeseen hindrances, contrary to our own wishes, as well as such hindrances that have significant influence on the finishing or delivery of the delivery product. This shall also apply if the circumstances take place at the sub-contractors. The aforementioned circumstances are also not our responsibility if they take place when a delay has already occurred. In important cases the buyer shall be informed as soon as possible of the start and end of such hindrances.
2.5 On delay in delivery the buyer may only following the fruitless expiry of a determined grace period given in writing together with the declaration that he will decline the delivery after passing of this deadline, or if the fulfilment of the contract no longer is of interest to him as a result of the delay, cancel the contract insofar as the fulfilment of the contract has not been reported to be ready at that point. The same shall apply in the case of a partial delay or partial impossibility. Further Number 6 shall apply.
2.6 The risk of random decline or random impairment of the purchased product transfers to the buyer upon acceptance, with regard to mail order, with delivery of the goods to the shipper, forwarding agent or a specified person or company employed to execute delivery. This shall also apply to delivery with our own vehicles, to partial delivery and in the case of a carriage-paid delivery. If delivery is delayed owing to circumstances for which the buyer is responsible, the risk shall pass to him from the day of dispatch. By way of derogation for consumers: the price risk of the random decline or random impairment of the purchased product shall transfer to the buyer also in the case of mail order to the buyer only upon the transfer of the products. Insofar as the buyer delays in accepting, this counts as transfer.
3 Payment Conditions
3.1 Insofar as nothing other has been agreed the prices apply ex works including loading, but excluding packaging.
3.2 Insofar as nothing other has been agreed payment without discount shall be made on delivery of the products. Cheques and bills of exchange shall only be accepted if this has been agreed and must always be on account of payment. Discount and foreign exchange fees are always for the account of the buyer and are due immediately.
3.3 Any set-off is only permitted with an undisputed or legally determined claim.
3.4 Our trade representatives or other field staff members are not entitled to accept payments or other funds without written authority.
4 Retention of Proprietary Rights
4.1 Our deliveries remain our property until all claims are paid, regardless of legal grounds, until all bills of exchange and cheques given to us in payment have been honoured, even if the purchase price for specially designated claims has been paid. On outstanding invoices the reserved ownership is security for out balance claims. Cash payments, cheque payments and bank transfers, which take place against the buyer sending a promissory note printed by us, shall only apply as payment, if the bill of exchange has been cashed by the drawee and we are released from the exchange rate liability. With regard to consumers the ownership remains reserved to Musikelectronic Geithain GmbH until complete payment of the purchase price. In contracts with consumers the ownership remains reserved to Musikelectronic Geithain GmbH until complete payment of the purchase price. If the Musikelectronic Geithain GmbH is commissioned to carry out repairs, replaced parts become property of the manufacturer without compensation.
4.2 The buyer is entitled to sell on the good subject to retention of title or to install it at the property of a third party on grounds of a purchase, work, works delivery or similar contract, as long as he is not in payment delay. The buyer’s claims on selling on or installing the goods subject to retention of title at the property of a third party are assigned already to us to insure all our claims from the business relationship, and regardless of whether the goods subject to retention of title are sold on without or after processing and to one of more recipients or installed at one or more properties of one or more third parties. In the case that the goods subject to retention of title are sold on together with products that are not our property or are installed at the property of a third party, this assignment of the claim is agreed to be at the market value of the goods subject to retention of title plus 20%. The buyer is entitled to retract the assignment. We can in cases of payment delay or stopped payments by the buyer, apply for a bankruptcy hearing either in court or out of court or other assets case against the buyer, so that the buyer informs us of the assigned claims and their debtors, gives us all the necessary information for collection, presents us with all the related documentation and informs the debtor of the assignment.
4.3 If the contract conditions of the third party debtor and the buyer contain a limitation of the assignment authority, or the third party makes the assignment subject to his agreement, we must be informed immediately in writing. For this case we are hereby irrevocably empowered, to collect our due claims in the name of and for the account of the buyer. The buyer shall at the same time inform the third party debtor of the irrevocable payment instruction to our benefit.
4.4 If the value of the securities held by us exceeds our claim by more than 20%, we are obliged to issue securities of our choice on demand of the buyer or any third party affected by our over-collateralisation.
4.5 Any actions of the buyer that breach the contract, in particular payment delay, we are entitled to take back the products after dunning letter and the buyer is obliged to issue. The application of the retention of proprietary rights as well as the pledging of the delivery products by us does not signify a cancellation of the contract, insofar as the payment by instalment law does not apply.
5.1 Insofar as nothing other is determined in the following, the general legal conditions apply with regard to the guarantee rights of the client.
5.2 The deadline for applying guarantee claims for consumers with newly manufactured products amounts to two years, for used products one year. For companies the limitation of action for guarantee claims for newly manufactured products and used products is a year in each case. Insofar as the period of limitation is shortened hereby, this shall not apply to damage compensation claims of the client on grounds of damage to life, body, health or damage compensation claims on grounds of a breach of significant contract obligations (cardinal obligations). Significant contract obligations are understood as such that are necessary to fulfil the goal of the contract (for example faultless creation of the object of sale, ownership procurement). The shortening of the period of limitation, furthermore, does not apply to damage compensation claims on grounds of an intentional or grossly negligent breach of obligations by Musikelectronic Geithain GmbH, its legal representatives or vicarious aides. The claim under the right of recourse pursuant to § 478 BGB (German Civil Code) for companies is also not included in the shortening of the periods of limitation.
5.3 If the buyer is a merchant and this concerns a trade association, the regulations of §§ 376, 377 HGB apply.
5.4 Complaints on partial deliveries do not justify rejection of the remaining deliveries.
5.5 These regulations also apply to the delivery of non-contractual products.
6 Liability and Agreed Exemption from Liability
6.1 Insofar as nothing other is regulation in the following, damage compensation claims of the client are excluded. This exclusion also applies to the legal representatives and vicarious aides of Musikelectronic Geithain GmbH.
6.2 Excepted from this liability exclusion at Number 6.1 are damage compensation claims on ground of harm to life, body, health. Also excluded are damage compensation claims on ground of the breach of significant contract obligations (cardinal obligations). Further excluded is the liability for damages attributable to intentional or grossly negligent breach of obligation by Musikelectronic Geithain GmbH, its legal representatives of vicarious aides.
6.3 The regulations of the product liability law remain unaffected.
7 Usage Rights
The use of images to perform work services /works remains reserved to Musikelectronic Geithain GmbH for the purposes of its own PR work.
8 Naming of References
With the issue of this order the buyer agrees that he may be named, dispensing with an additional written authorisation, by Musikelectronic Geithain GmbH as a reference client on its homepage and in other business documentation – also relating to a product presentation (for example by images and description of the contract item). Insofar as the buyer does not wish to be named as a reference or quoted, he can object to it. A retraction of the consent is possible at any time.
9 Salutory Clausel
If a regulation in the General Terms and Conditions of Business should be ineffective this shall not affect the validity of the remaining regulations.
Geithain, April 2013