General Terms and Conditions of trade for the production and delivery of audio, audio/video and data storage devices, printed matters, books and packaging of all kinds
by ‘optimal media GmbH’, Glienholzweg 7, 17207 Roebel/Mueritz, Germany
- 1.1 All business transactions between optimal media GmbH (hereinafter 'optimal') and its clients are based exclusively on optimal`s General Terms and Conditions of Trade for the production of Audio, Audio/Video and Data Storage Devices, Printed Matters, Books and Packaging of all kind (hereinafter "the Conditions"). Any conflicting and/or supplementary conditions initiated by the customer cannot be deemed as binding on optimal, even if optimal does not expressly object there-to or, being aware of such conditions initiated by the customer, executes an order without prior objection.
- 1.2 All contractual agreements between optimal and the customer are set out in the written or printed document (or appendices) of which these conditions are an integral part. The Conditions shall apply only to contracts with persons running a business pursuant to Section 14 of the German Civil Code (Unternehmer gemäß § 14 BGB).
- 1.3 The Conditions remain in force for all future contracts with the customer. All trade stipulations and clauses are to be interpreted in accordance with the Incoterms 2010.
2. Production Material; Labeling of Products
- 2.1 The customer accepts the responsibility and costs of providing optimal with all documents and material necessary for the production. These documents and material, in particular but not exclusively master tapes, data artwork and films must be supplied as duplicates, so that the customer retains an original. The customer is solely responsible where necessary for the reproduction of such documents and material and optimal accepts no liability for losses or problems caused by the customer's failure to retain an original.
- 2.2 optimal remains the legal owner of any production material not directly supplied by the customer, in particular but not exclusively glass master, stamper, data, artwork and tapes, notwithstanding the customer may have reimbursed optimal for the production costs for such material.
- 2.3 All material, components and other parts provided or supplied by the customer is stored at optimal`s premises only for the time of production.
- 2.4 optimal agrees to store all production material according to section 2.1 to 2.3 without charge for a period of six months after completion of the order. Thereafter, the customer is given a four week notice to reserve his right of further use and to inform optimal as such. Should the customer fail to inform optimal within this time, optimal is entitled to handle the material at its discretion. In particular the right of disposal is reserved. optimal accepts no liability for defects in stored material unless such defects are caused by gross negligence or wilful behaviour.
- 2.5 optimal retains the right to affix its company trademark or logo and to mark the country of origin on the product in accordance with prevailing industry norms.
- 3.1 The quoted delivery period commences only upon optimal's receipt of the order and all production documents and approved material complying with optimal's specifications and, when required by optimal, of all necessary indemnifying documents. The delivery period is automatically extended should any production material require modification or approval after receipt.
- 3.2Delivery is made EXW Roebel/Mueritz in accordance with the Incoterms 2010.The determining factor for the compliance with the proscribed periods and deadlines of production and delivery is the time at which the product is made available for approval and collection by the customer on optimal's premises. optimal is entitled to make partial deliveries to an extent acceptable to the customer.
- 3.3 The burden of liability is transferred to the customer immediately when the goods are made available at optimal's premises and the customer has been informed thereof. Freight insurance is provided only upon request and at the expense of the customer.
- 3.4 In the case of the customer's delaying or otherwise defaulting in the acceptance of delivery, optimal is entitled to demand storage fees of EUR 50 per EURO-pallet per month. The right to reclaim additional costs or damages remains reserved. The customer is entitled to appeal against the amount of said damages in cases where he is able to provide proof of a lesser value.
- 3.5 Agreed production and delivery dates are automatically extended in cases where optimal cannot singularly and directly be held responsible for the hindrances in delivery, in particular but not limited to cases of irregularities in the power supply or of traffic impediments, imposition of an embargo, plant breakdown, industrial action, delays and deficiencies on the part of optimal's subcontractors, as well as in other cases of force majeure, for the full duration of such hindrance in delivery. Should optimal ultimately be prevented from fulfilling an order owing to any case of force majeure, the respective contract will be deemed null and void. Should a case of force majeure result in a delay of more than two calendar months, optimal reserves the right to withdraw from the contract without penalty. optimal will inform the customer of withdrawal owing to such hindrances of delivery without undue delay and return any payments made by the customer.
- 3.6Should optimal not fulfil its obligations in time or not in accordance with the contract, the customer has the right to determine in writing a period of grace of a minimum of four weeks. The customer has the right to withdraw from the contract should the order not be completed within this period, such withdrawal shall be presented in writing. Minor breaches of obligations do not constitute right of with drawal.
4. Prices, Payment Conditions
- 4.1 All quoted prices are exclusive of VAT. Respective VAT will be calculated at the rate presiding on the date of invoice and is shown as a separate item on the final invoice.
- 4.2 optimal's contracted prices are binding for a term of six weeks as of the confirmation of the contract. Should increases in optimal's costs occur after this time over which optimal has no direct control, including but not limited to increases in material and wage costs or taxes, the right is reserved to increase the contract prices accordingly. The customer has the right to require that optimal is to justify such increases in costs.
- 4.3 optimal's invoices are due and payable without deduction upon receipt. If the buyer delays payment, he shall compensate optimal for all costs involved with the recovery of the debt, including but not limited to the fees for debt collection, lawyers and court proceedings.
- 4.4 Delivery of a customer's initial order will be completed only on the basis of payment in advance or payment on delivery.
5. Set-off and Retention Rights
- 5.1 The customer's right of retention of payment and/or compensation is deemed to exist only where his counterclaims are resiudicata, undisputed, or acknowledged by optimal.
- 5.2 Should optimal become aware of or have reason to foresee a material deterioration in the financial stability of the customer after the conclusion of an agreement, for example but not exclusively, suspension of duty of payment by the customer, or filing for bankruptcy, or creditor protection, whether effective or pending, the right is reserved to demand payment in advance or other security and, should the customer not make payment or provide security within a reasonable period of time, to rescind the contract.
6. Retention of Title
- 6.1 optimal retains title to all goods, also post-delivery, until all debts and payments arising from its contractual relationship with the customer, including those which may occur subsequent to the original order, have been discharged.
- 6.2 Processing or other reworking of the goods by the customer is made, for the purposes of title determination, on optimal's behalf, however with no transfer of liability to optimal. Should the material property for which optimal has retained title be integrated into another product, rendering it inseparable, optimal shall have title to the new product on a pro rata basis calculated on the value of the original product compared to the value of the new product. Should title of the new product be transferred to the customer by virtue of becoming a fixture or due to mixture, he automatically accords optimal joint title on a pro rata basis calculated on the value of the original product com-pared to the value of the additional components in the new product. Such joint title, acquired by optimal under the terms of this paragraph is transferred to the customer in identical manner to that of a finished product supplied by optimal, namely by the discharge of all due payments on the part of the customer.
- 6.3 The customer shall hold the goods (co-)owned by optimal in his custody free of charge. The customer assigns the claims, which accrue vis-á-vis a third party from a fixed attachment or mixture of the products with other chattels, to optimal. The customer shall sufficiently insure the products (co-)owned by optimal, in particular but not exclusively against fire and theft. Payments resulting from claims against the insurance company resulting from a case of damage to products (co-)owned by optimal are hereby assigned to optimal to the full extent of the value of the original product delivered under retention of title.
- 6.4 The customer is entitled to re-sell the products in the ordinary course of his business. To the extent of the amount invoiced he assigns to optimal hereby all receivables (including VAT) resulting from the resale of the products. The right of the customer to collect these receivables in his own right after the assignment of the claims to optimal remains unaffected. Optimal reserves the right to collect its entitlement independently of the client but agrees not to do so, as long as the customer fulfils his payment obligations by means of the proceeds from the resale, is not in default with payments, and in particular has not applied for bankruptcy or suspension of the duty of payment. Should any of the foregoing circumstances however prevail, the customer shall at optimal's request inform optimal of the assigned receivables and their debtors, make all statements necessary for the collection of the receivables, deliver all relevant documents and notify the debtors of such assignment.
- 6.5 The customer shall not be entitled to use products which are still wholly or partially owned by optimal in any other way, in particular but not exclusively, to transfer title for security purposes or to pledge the products in favour of a third party. The liens assigned to optimal may only be pledged or their title transferred to third parties with optimal's prior consent.
- 6.6 Should the value of the securities provided exceed optimal's written claims by more than 50 per cent, optimal' s, upon the customer's request, obliged to re-assign and release the security interests in assets of optimal's choice.
- 6.7 In case of distress, seizure or other interference by a third party, the customer shall immediately inform optimal in writing in order to enable optimal to file an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). Should the third party not be capable of reimbursing optimal the court and out-of-court costs incurred in connection with an action pursuant to Section 771 of the German Code of Civil Procedure, the customer shall indemnify optimal against such fees.
- 6.8 Should the customer be in default of payment or fail to comply with other material contractual obligations, optimal is entitled to claim release of all products delivered under retention of title and to subsequently realize their value. The customer shall tolerate their removal and permit their realisation and shall grant access to his business premises for this purpose. This shall not be deemed as withdrawal from the contract on the part of optimal. The customer shall be liable for any shortfall between the purchase price of the goods and the proceeds realized by their sale in this manner.
7. Approval, defects of goods, Liability
- 7.1 Should inspection of the products by the customer not have taken place on optimal's premises, the customer shall without undue delay inspect and approve the products delivered to him and report claims of all kinds to optimal in writing. Such defects that cannot be identified upon approval or inspection shall be reported to optimal in writing without undue delay upon discovery. The customer may not refuse approval or acceptance of products with insignificant defects. Should the customer neglect to inspect and approve the goods, and within a reasonable period as stipulated by optimal, not indicate his approval of the goods, the products shall be deemed to have been approved by the customer on the basis of default.
- 7.2 Should defects become evident, which can be attributed to optimal, optimal shall at its own discretion have the right to repair said defects or to deliver new and defect-free products within a reasonable period. The customer shall have the right to reduce the purchase price or withdraw from the contract only in the case of optimal's singular failure to repair or replace the undisputed defective goods within the proscribed period. Returned goods must be sent to the following address: optimal media GmbH, Dept. Wareneingang, Glienholzweg 7, 17207 Roebel/Mueritz. optimal accepts no liability for goods returned to any and all other addresses.
- 7.3 optimal accepts absolutely no liability for defects or damage attributable to defective materials supplied by the customer, particularly but not exclusively drawings, blueprints, technical specifications and other documents or materials.
- 7.4 All claims with respect to defects of the goods become time-barred one year after the delivery of the goods.
- 7.5 No liability for defects of the goods in excess of the above mentioned claims, except as stated in clause 8, will be accepted by optimal under any circumstances, especially but not exclusively, claims for lost profit and other damages to the customer's property or assets.
- 7.6 Public statements or announcements by optimal, the manufacturer of the delivered goods or its aidees, especially in advertisements or in labeling the goods do not constitute a description of the quality of the goods nor a warranty nor a guarantee.
- 7.7 The claims of the customer under Sections 478, 479 of the German Civil Code (BGB) remain unaffected.
- 7.8 The customer is obliged in the absence of a contrary agreement to indemnify optimal against all claims of third parties for violation of intellectual property rights, in particular copyrights. It is the sole duty of the customer to obtain all licenses and permits for the duplication of intellectual properties and to ascertain their validity. This indemnity obligation is simultaneously extended to claims on the part of performing rights/collecting societies such as GEMA. Furthermore, the customer is obliged to supply optimal with all statutory information required by the performing rights/collecting societies to perform their duties, in particular but not limited to pertaining to the invoicing of license fees.
8.1 optimal shall only be liable for damage if
- a) the liability is mandatory under the applicable law, e.g. under the German Product Liability Act (Deutsches Produkthaftungsgesetz) or in case of harm of life, body or health; or if
- b) optimal breaches a warranty/guarantee with regard to the quality of the goods ("Garantie"); or if
- c) the damage is attributable to gross negligence or wilful conduct; or if
- d) optimal through its fault commits a material breach of this contract, meaning a breach of an obligation which is characteristic for the contract and on which the customer can rely.
- 8.2 In all other cases optimal has no liability for damages whatsoever, irrespective of the legal basis. In particular optimal does not assume any liability for indirect and/or consequential damage, loss of profit or damage to other assets of the buyer.
- 8.3 In any event, liability shall be limited to such damage which optimal foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which optimal then knew or ought to have known, as a possible consequence of the breach of contract. This limitation does not apply in the cases of paragraph one, subparagraph a), b) and c) of this clause "8. Liability".
- 8.4 The exclusion and/or limitation of claims for damages according to the above paragraphs applies also to claims against employees and contractors of optimal.
- 8.1 optimal shall only be liable for damage if
- 9.1 In the event of export deliveries pursuant to section 6 of the German VAT Act, the customer shall provide optimal with the data and documents that optimal requires in order to prove the export delivery vis-á-vis the German tax authorities. If the customer does not comply with this obligation, he shall additionally reimburse optimal the appropriate sum of the invoiced amount equal to the prevailing rate of VAT for domestic deliveries.
- 9.2 In case of deliveries from the Federal Republic of Germany to other EC member states the customer shall inform optimal of his VAT Identification number under which he carries out the income taxation within the European Union, no less than 24 hours prior to the delivery. Failing to do so will result in the agreed purchase price being automatically increased by the prevailing rate of sales tax within the Federal Republic of Germany to indemnify optimal against its mandatory payment of said amount.
- 9.3 All legal transactions between optimal and the customer are subject to German law with the exception of the UN Convention of 11th April 1980 regarding the International Sale of Goods. The sole authentic text of these Conditions is the German text which is available upon request.
9.4 Contract domicile is Roebel/Mueritz. The place of jurisdiction for both parties is Hamburg. optimal also reserves the right to sue the customer at his general court of jurisdiction.
Effective as of November 01, 2011