1. APPLICABILITY OF THESE TERMS & CONDITIONS AND CONCLUSION OF CONTRACT
1.1 The following Terms & Conditions (T&Cs) shall apply to all deliveries and offers of MediaRange GmbH. Any terms and conditions or general business terms of purchase of the customer, which deviate from or are in contradiction to the T&Cs or contain conditions not included in the T&Cs, shall only be deemed to have become a part of any sales agreement if we have expressly consented to the applicability of such other terms provided by the customer. Our consent shall be required for such applicability even where we have supplied goods without reservation in knowledge of the customer’s terms and/or conditions. Our T&Cs shall also apply to all future transactions such as supplementary and replacement deliveries and repair services, irrespective of whether we have expressly referred to these T&Cs. The T&Cs shall only apply if the customer is a business [within the meaning of Sec. 14 German Civil Code (BGB)], a legal entity under public law or a special fund under public law.
1.2 Our price lists, information and offers are non-binding and without obligation.
1.3 An order from a customer is deemed a binding offer to enter into a contract. The customer shall be bound to such order for a period of two weeks. A binding contract is subject to an offer of a customer and our written declaration of acceptance of that offer (order confirmation). If we do not send an order confirmation, our delivery of the goods shall be deemed our acceptance.
2. PERIOD OF DELIVERY, DELIVERY, CONSEQUENCES OF DEFAULT, PASSING OF RISK
2.1 Any information we possibly provide on delivery times is non-binding and for information purposes only. Dates for deliveries and services are only binding, if we have expressly confirmed them as such in writing.
2.2 In the event of advance payment, the delivery period begins with the receipt of the purchase price on our bank account and in the event of purchase on account with the sending of the order confirmation. The delivery period is met if the item to be delivered has been dispatched to the customer by the end of the delivery period or, in the case of self-collection by the customer, when the customer has been informed that the item is ready for collection.
2.3 Cases of force majeure and other circumstances or events for which we are not responsible (e.g. strike, legitimate lock-out, riot, fire or explosions damage, unavoidable traffic or operational disruptions, natural disasters, pandemics and epidemics), which make a delivery significantly more difficult or impossible for us, shall release us from the obligations under the respective contract. For obstacles of a temporary nature, however, this applies only for the duration of the obstruction plus a reasonable additional warm-up period. The above shall also apply if such circumstances and events occur at our suppliers. If delivery is delayed by more than one month as a result of such circumstances, we and the customer shall be entitled, to the exclusion of all further claims and after setting a grace period of at least three weeks, to withdraw from the contract with respect to the quantity affected by the default.
2.4 If a period of delivery agreed as binding is exceeded, the customer is required to set us a reasonable grace period in writing. In the event that we exceed this grace period by more than three weeks, the customer may withdraw from the contract.
2.5 In the case of purchase contracts, the goods are shipped at the risk of the customer to the place indicated on the order form. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon delivery of the goods to the shipping agent, carrier or other transport person. If the delivery is delayed due to circumstances for which the customer is responsible, the risk is transferred to the customer from the day the goods are ready for delivery, provided the customer has been informed of this.
2.6 The way of delivery shall be determined by us. Partial deliveries are permitted insofar as they are reasonable for the customer.
3. PRICES AND PAYMENTS
3.1 Our prices do not include any value added tax (VAT) in the respective statutory amount, packaging, delivery charges and customs fees (where applicable).
3.2 We reserve the right to increase our prices accordingly if cost increases occur after the conclusion of the contract, in particular due to collective agreements or increases in the price of (raw) materials. Upon request, we will provide the customer with evidence of such increases.
3.3 Unless expressly agreed otherwise in individual cases, our prices also include a possible copying levy within the meaning of Sec. 54 German Copyright Act (UrhG) as a component of internal calculation. In such case, a reference to the copying levy will be made on our invoice. Should the amount of the copying levy be altered by the collecting society after conclusion of the contract, there shall be no obligation for repayment for us and no right of adjustment for the customer.
3.4 Delivery will be made only against advance payment. If, in individual cases, delivery against invoice has been agreed upon, invoices fall due and are payable within 10 days of the invoice date without any deduction. The date of payment is determined by the date of receiving the amount on bank account.
3.5 The customer is not entitled to deduct or retain due payments by setting off, withholding or in any other way, unless any such counterclaim is uncontended or has been finally established by a non-appealable court decision. The customer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
3.6 In the event of a default, the customer is obliged to pay annual interest at a rate of 8 percentage points above the base interest rate pursuant to Sec. 247 BGB. The customer is permitted to prove that the damage caused by default is lower. We reserve the right to assert even higher damages caused by such default.
3.7 We are not obliged to accept bills of exchange, cheques and other payment instruments. Discount and bank charges shall be borne by the customer. We do not assume any guarantee for timely presentation and protesting.
4. RETENTION OF TITLE
4.1 We reserve title to sold and delivered goods until all our claims arising from the business relationship with the customer have been satisfied in full. Goods delivered as well as any goods in lieu thereof covered by retention of title as per the following provisions are hereinafter referred to as “Retained Goods”.
4.2 The customer shall not be permitted to transfer ownership by way of security or pledge the Retained Goods. If a third party intends to pledge the Retained Goods, the customer shall disclose our ownership and inform us immediately. The customer shall be obliged to protect the Retained Goods against seizure by third parties.
4.3 The customer shall be permitted to resell the Retained Goods within the normal course of business. In such case, the following supplemental conditions shall apply:
a) The customer herewith assigns to us as security any and all claims the customer may have against third parties arising from the resale of the goods. The same shall apply for other claims in lieu of the Retained Goods or which arise with regard to the Retained Goods, such as insurance claims or tort claims in the event of loss or destruction.
b) The customer shall remain authorised to collect the claims. We agree not to collect claims as long as the customer complies with all payment obligations, does not default, has not filed for insolvency and there is no other legal defect in the customer’s creditworthiness. Otherwise, we shall be entitled to demand that the customer discloses to us the claims assigned and the names of the debtors, to provide all information and documentation necessary for recovery of the claims and notify the third-party debtor of the assignment of the claim.
c) If the value of securities granted to us by retention of title exceeds the cover limit of 150 % of the secured claims, we shall release securities to this extent and of our choice upon the customer’s request. The market price of the Retained Goods and the nominal value of the secured claims at the time of the decision on the request for release shall be used to calculate the cover limit.
5. LIABILITY FOR DEFECTS
5.1 The customer shall carefully and completely inspect the supplied goods for defects immediately upon receipt. If the inspection reveals recognisable defects, quantity errors or incorrect deliveries, the customer shall be obliged to report any such incident in writing and without delay. Such report is deemed to be without delay if it is made in writing within seven (7) days upon receipt of the goods. Otherwise, the delivered goods shall be deemed to have been approved, so that our liability for the unreported defect is forfeited. Within reporting a defect, the customer shall describe the alleged defect in writing and in as much detail as possible and, in particular, provide a written description of the manner and the circumstances in which the alleged defect appears. If a defect that was not recognisable during the inspection becomes apparent later, the customer shall be obliged to inform us in the same way and without delay after his detection.
5.2 Information published by us in catalogues, brochures, presentations and manual texts in text and/or image form (e.g. descriptions, illustrations or drawings) characterise the nature of our products and their possible forms of use. They do not constitute a guarantee of durability or quality and correspond to our current state of knowledge. Third party manufacturer specifications are not binding on us. Furthermore, we shall not be liable for improper or unsuitable use, in particular incorrect use by the customer or third parties, incorrect or negligent handling and handling, in particular by untrained personnel.
5.3. If the notification of a defect is legitimate, supplementary performance shall be effected, at our discretion, by remedying the defect or delivering a replacement free of defects. If the supplementary performance has failed or is unreasonable or dispensable for the customer because
- we seriously and finally refuse the supplementary performance, or
- there are special circumstances which, considering the interest of both parties, justify immediate withdrawal from the contract (Sec. 323 para. 2 BGB),
the customer shall immediately be entitled to reduce the purchase price or, at his discretion, to withdraw from the contract and demand compensation for damages in lieu of performance or reimbursement of futile expenses (Sec. 284 BGB) in accordance with Clause 6.
5.4 We shall be entitled to make the supplementary performance subject to the customer paying the purchase price. However, the customer shall then be entitled to withhold a reasonable part of the purchase price in relation to the alleged defect.
6. LIMITATION OF LIABILITY
6.1 We shall only be liable for damages – based on whatsoever legal grounds – if the damages were caused by breach of a substantial contractual obligation (cardinal obligation) or by gross negligence or intent. In the event of an intentional or grossly negligent breach of an obligation on the part of a vicarious agent of ours who neither is a legal representative of us nor an employee on management level, we shall only be liable for breaches of a cardinal obligation.
6.2. In any event, our liability for any slight negligence, in case of actions of the group of persons mentioned in the second sentence of Clause 6.1 also for intent and gross negligence, shall be limited to the usual and typically foreseeable damage in such cases.
6.3 In the cases of Clause 6.2, we shall not be liable for indirect damages, consequential damages for a defect, loss of profit or savings; the maximum amount of liability in these cases shall be the amount of the respective purchase price.
6.4 None of the exclusions and limitations of liability shall apply in the event of injury to life, body or health, or to liability under the German Product Liability Act (ProdHaftG).
7. LIMITATION PERIOD
7.1 The customer’s claims based on defect shall expire one year upon receipt of the goods.
7.2 Contractual and non-contractual damage claims of the customer based on defects shall also expire one year upon receipt of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case.
7.3 Damage claims of the customer within the scope of the fault-based liability regime in the case of intent and gross negligence, for damages from an injury to life, body or health, and under the German Product Liability Act shall expire exclusively in accordance with the statutory limitation periods.
8. STORAGE AND USE OF GOODS
It is the customer’s responsibility to ensure that the goods ordered can be used for the envisaged purpose. The customer shall be responsible to ensure that the goods comply with all relevant legal permits and standards for their envisaged use or further operation. As long as we retain title to the goods, the customer shall be obliged to observe all instructions, warnings, and other notifications concerning use, storage or the handling of goods, as issued by us. Moreover, in this case the customer shall be obliged to handle the delivered goods with care and to keep them in perfect condition.
9. RETURN OF GOODS / RECYCLING
9.1 Notwithstanding the provisions on liability for defects in Clause 5, goods sold and delivered to the customer shall not be returned to us without our prior written consent. Goods returned with our prior consent must be sent at the expense of the customer in the original packaging or an equally secure packaging as well as unaltered and without missing parts.
9.2 The customer assumes the obligation to dispose of the delivered goods after termination of use at his own expense and in accordance with the statutory provisions. The customer shall be obliged to arrange with any commercial third party to whom the customer passes on the delivered goods, that such customer is required to dispose of these goods properly after termination of their use at its own expense and in accordance with the statutory provisions, and to impose a corresponding obligation in the event of any further passing on of the goods. If the customer fails to impose on third parties to whom he passes on the delivered goods an obligation to dispose of the goods and to impose a corresponding further obligation, the customer shall be obliged to take back the delivered goods after termination of use at its own expense, and to dispose of them properly in accordance with the statutory provisions.
10. GENERAL PROVISIONS
10.1 If we do not immediately take legal action in the event of a breach of contract by the customer, this shall not be deemed a waiver on our part to take legal action against this breach of the contract at a later date.
10.2 If a provision in these T&Cs is or becomes invalid, the validity of the other provision shall remain unaffected. In such a case, the customer and we shall be obliged to replace the invalid provision by a valid provision which comes as close as possible to the economic intent and purpose of the invalid provision to the extent permitted by law. The same shall apply in the event of a loophole.
10.3 These T&Cs and any contract concluded on the basis thereof are subject exclusively to the laws of the Federal Republic of Germany. The provisions of the United Nations Convention on Contract for the International Sale of Goods (CISG) and private international laws shall not apply.
10.4 If the customer is a business, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be Frankfurt / Main. If we take legal action, this can also be taken at the customer’s general place of jurisdiction.