GENERAL TERMS AND CONDITIONS OF BUSINESS OF TONMANUFAKTUR RAILROAD TRACKS GMBH (HEREINAFTER REFERRED TO AS SUPPLIER), BAHNSTR. 49, 50170 KERPEN
§1 SCOPE OF APPLICATION
1. The supplier‘s terms and conditions of sale shall apply exclusively; the supplier shall not recognize any terms and conditions of the customer which conflict with or deviate from the supplier‘s terms and conditions of sale.
2. The supplier‘s terms and conditions of sale shall only apply to companies.
3. The supplier‘s conditions of sale shall also apply to all future transactions with the customer.
§2 ORDER | ORDER ACCEPTANCE | PRODUCTION EQUIPMENT / TOOLS
1. By completing the order placement, the customer accepts the offer submitted by the supplier. Immediately after completion of the order placement, the customer receives an order confirmation in digital form, which is made available to him via the upplier’s upload portal. The inspection of this document with the title «DMM-Vinyl-Cutting Order» is the responsibility of the customer. There is no separate sending or other reading request on the part of the supplier.
2. The «DMM-Vinyl-Cutting Order» contains all relevant specifications for the order. It is the responsibility of the customer to check this order confirmation and to notify the supplier of any errors as soon as possible. Since all orders are completed as quickly as possible, there is no guarantee that subsequent corrections can be made without re-cutting. Costs for a re-cut due to incorrect information in the «DMM-Vinyl-Cutting Order» shall be borne by the customer.
3. The supplier reserves the right to refuse orders. In this case, the contract concluded by the order will be cancelled and the transmitted data will be destroyed by the supplier. Reasons for rejection include, but are not limited to, the following:
a) Deviations of the material provided by the customer from the specifications for the DMM vinyl cut.
b) The supplier’s political or ethical concerns about the content of the audio material supplied.
c) Violation of copyright according to §9.
4. Deviations of the ordered or delivered articles from the order, in particular with regard to material and execution, are expressly reserved within the framework of technical progress, insofar as these deviations do not negatively influence the contractually agreed target quality of the article.
5. Production material and tools not supplied by the customer, in particular glass masters, fathers, mothers, stamper, film and tape material and artwork remain the property of the supplier, even if the customer bears the production costs.
§3 DELIVERY TIME
1. If dispatch of the goods has been agreed, the supplier shall be free to choose the transport company and the type of means of transport in the absence of special agreements.
2. If dispatch is delayed due to circumstances for which the customer is responsible (faulty or incomplete data delivery / inaccuracies in communication), the risk shall pass to the customer at the time of readiness for dispatch. The costs arising from the delay shall be borne by the customer.
3. The supplier shall not be obliged to insure the consignment or have it insured against damage in transit, unless the supplier has assumed a corresponding obligation in writing.
§4 LIABILITY FOR DEFECTS
1. The customer is obliged to inspect the delivered goods immediately after delivery and to notify the supplier of existing defects immediately and in writing (letter or e-mail). Defects that are reported late will not be considered by the supplier and are excluded from the warranty.
Complaints which are asserted against carriers or other third parties do not constitute complaints in due form and time.
2. Only turntables with a cartridge system adjusted according to the manufacturer‘s specifications will be accepted as the basis for detecting defects in vinyl production. The customer has to take note of the fact that dirty or worn styli as well as incorrectly adjusted support and antiskating forces of the tonearm can lead to distortions of the sound image and thus to error assessments regarding the proper production and quality of the delivered product.
3. Sidetones or background noises as well as slight crackling or crackling in a test press are unavoidable due to the manufacturing process and the material used and therefore do not give rise to liability for defects. The supplier is responsible for assessing the tolerance of such defects.
4. In the event that subsequent performance in the form of a new delivery is made on the basis of a justified notice of defect, the provisions on the delivery period shall apply accordingly. The supplier shall be granted a reasonable period of time, which shall not be less than two weeks, for the rectification of defects by subsequent improvement.
5. The existence of a defect shall constitute the following rights of the customer:
a) In the event of defects, the customer shall initially have the right to demand subsequent performance from the supplier. The right to choose whether a new delivery of the item or a remedy of the defect is to take place shall be at the discretion of the supplier.
b) In addition, the supplier shall have the right, in the event of failure of an attempt at subsequent performance, to effect a new subsequent performance, again at its own discretion with regard to the manner and within a reasonable period of time. Only if the repeated subsequent performance also fails shall the customer have the right to withdraw from the contract or to reduce the purchase price.
§5 TOTAL LIABILITY | LIABILITY FOR DOCUMENTS SUPPLIED BY CUSTOMERS
1. Any further liability for damages than provided for in § 4 para. 3 a) – 3b) is excluded – irrespective of the legal nature of the asserted claim.
2. Insofar as the supplier’s liability is excluded or limited, this shall also apply to the personal liability of the supplier’s employees, workers, staff, representatives and vicarious agents.
3. The documents and materials supplied by the customer or produced on his behalf which the supplier requires for the fulfilment of the contract, such as master, print films, printed matter, wrappings, inserts, etc., shall remain the property of the customer. As far as digital data are concerned here, the customer is obliged to make these available to the supplier as copies. For his part, the supplier shall not be obliged to make backup copies thereof. The supplier shall take these items into custody free of charge. The supplier shall only be liable for his own customary care. The objects are not insured by the supplier. The customer is obliged to reclaim these items from the supplier immediately after completion of the order. If he does not make use of this reclaim within a period of 3 months, calculated from handover to the supplier, this shall be deemed consent to the destruction of these materials by the supplier. The supplier is then entitled to destroy these materials without the supplier being obliged to request the customer to collect them again. The supplier recommends that the customer insures the items at his own risk.
§6 PRICES | TERMS OF PAYMENT
1. The supplier’s prices apply «ex works», excluding delivery; this will be invoiced separately.
2. The statutory value added tax is not included in the supplier’s prices; it is shown separately in the invoice at the statutory rate on the date of invoicing.
3. The deduction of a discount requires a special written agreement.
4. Unless otherwise stated in the order confirmation or invoice, the net purchase price (without deduction) is due for payment within 14 days of the invoice date. If the customer is in default of payment, the supplier shall be entitled to demand statutory default interest. Should the supplier become aware of a circumstance after conclusion of the contract which gives rise to doubts about the customer’s ability to pay, the supplier reserves the right to deliver the goods only against advance payment.
5. Compliance with the supplier’s delivery obligation presupposes the timely and proper fulfilment of the customers obligations.
6. If the customer is in default of acceptance or violates other obligations to cooperate, the supplier shall be entitled to obtain the damage incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of sale shall also pass to the customer at the time at which the customer defaults on acceptance.
7. Partial performances are permissible.
8. Due to the fact that different production processes have to be coordinated, there is a surplus or scrap of materials. As a result, the order quantities are not always be adhered too exactly. The supplier is therefore entitled to adjust the order quantity upwards or downwards within reasonable limits. Excess or short deliveries within the following tolerances are reasonable:
up to 500 pieces tolerance +/- 20 %
500 – 2,999 pieces tolerance +/- 10 %
3000 – 4,999 pieces tolerance +/- 5 %
5000 – 9,999 pieces tolerance +/- 300 pieces
10.000 – 19.999 pieces tolerance +/- 400 pieces
from 20.000 pieces tolerance +/- 500 pieces
The quantity delivered shall be invoiced.
9. The means of transport shall be determined by the supplier at its reasonable discretion. The supplier shall not be liable for the cheapest shipment.
§7 TRANSFER OF RISK
1. Unless otherwise stated in the order confirmation, delivery « ex works» is agreed.
2. If the customer so wishes, the supplier shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
§8 SECURING THE RETENTION OF TITLE
1. The supplier retains title to the purchased item until receipt of all payments arising from the supply contract. In the event of breach of contract by the customer, in particular default in payment, the supplier shall be entitled to take back the object of sale. The taking back of the object of sale by the supplier does not constitute a withdrawal from the contract, unless the supplier has expressly declared this in writing. Seizure of the object of sale by the supplier shall always constitute withdrawal from the contract. After taking back the object of sale, the supplier shall be entitled to sell it; the proceeds of such sale shall be set off against the customer’s liabilities – less reasonable selling costs.
2. The customer is obliged to treat the object of sale with care; in particular, he is obliged to pay sufficient replacement value for it at his own expense against fire, water and theft damage.
3. In the event of seizures or other interventions by third parties, the customer must notify the supplier immediately in writing so that the supplier can bring an action in accordance with §771 ZPO (Code of Civil Procedure). Insofar as the third party is not in a position to reimburse the supplier for the judicial and extrajudicial costs of an action pursuant to §771 ZPO, the customer shall be liable for the loss incurred by the supplier.
4. The customer is entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to the supplier all claims in the amount of the final invoice amount agreed with the supplier (including value added tax) which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. The authority of the supplier to collect the claim himself remains unaffected by this. However, the supplier undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of bankruptcy or composition proceedings and has not suspended payments. If this is the case, however, the supplier may demand that the customer informs the supplier of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor (third party) of the assignment.
5. The supplier undertakes to release the securities to which he is entitled at the customer’s request insofar as the realizable value of his securities exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%; the selection of the securities to be released is incumbent on the supplier.
§9 THIRD PARTY RIGHTS | CUSTOMER’ S LIABILITY | SUPPLIER’S RELEASE FROM LIABILITY
1. By placing an order, the customer declares that he is the owner or authorized party of the sound, image and text material provided by him or third parties within the framework of order processing and that no rights of third parties are infringed by order processing. In particular, unless otherwise agreed, the customer is responsible for providing the necessary releases and confirmations from collecting societies (e.g. Gema – more information at www.gema.de)
2. In the event that a third party asserts rights against the supplier or the customer which conflict with the performance of the contract, the contracting parties shall inform each other immediately. The customer undertakes to support the supplier in the defense against such claims to the best of his knowledge and belief. In addition, the customer shall indemnify the supplier upon first request against all claims of the third party and undertakes to compensate the supplier for any damages and costs incurred by the supplier due to the rights of the third party or in connection with the defense against such claims.
3. If the customer provides sound, text and/or picture templates which he cannot dispose of alone, or such templates of third parties, he must inform the supplier of this and of all legally relevant facts known or recognizable to him.
4. The customer shall draw the supplier’s attention to all rights of third parties known to him which could be infringed by the performance of the contract.
§10 GENERAL TERMS
1. Amendments and supplements to the contract and/or these General Terms and Conditions as well as collateral agreements must be made in writing in order to be effective. This shall also apply to any modification of this requirement for the written form.
2. If a provision of the contract and/or these General Terms and Conditions is invalid or unenforceable in whole or in part, the validity of the remaining provisions shall remain unaffected. In this case, the parties undertake to replace the invalid or unenforceable provision with a valid or enforceable provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision.
3. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the court responsible for the registered office of the supplier. This shall also apply if the customer does not have a general place of jurisdiction in the Federal Republic of Germany or has moved his usual place of residence abroad after conclusion of the contract. However, the supplier is entitled to sue the customer at any other legal place of jurisdiction. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Kerpen, 10th October 2020