1. VALIDITY, CONCLUSION OF CONTRACT
1.1 The following General Business Terms and Conditions shall apply to all deliveries and offers made by MediaRange GmbH. Wherever our business terms may differ from those of the customer, the customer shall be deemed to have declared upon acceptance of the goods that our terms shall apply in lieu of his own. Our business terms shall also apply to all future transactions in the same matter, such as additional or replacement deliveries and repair work, regardless of whether the terms are expressly invoked.
1.2 Our price lists, information and offers are non-binding and may change without notice.
1.3 A customer order is not deemed a contract until it has been accepted by us in writing (the order confirmation). In cases in which we have not sent an order confirmation, our sending of the goods and the accompanying invoice is deemed our written acceptance. The customer is bound by his order for a term of two weeks.
2. DELIVERY DATES, DELIVERY, CONSEQUENCES OF DEFAULT; TRANSFER OF RISK
2.1 Delivery dates indicated by us are subject to change and are for purposes of information only. Dates for deliveries and services shall only be binding if they have been confirmed in writing by us as being such.
2.2 The delivery period shall begin upon the order confirmation being sent. The delivery date is deemed to have been met if up to expiry of the date the item has been sent or – in the event the customer collects it himself – a notification that it is ready for pick-up has been sent.
2.3 Force majeure and other unforeseeable circumstances (strike, shut-out, civil disturbance, natural disasters) which make delivery by us extremely difficult or impossible shall be deemed to release us from the contractual obligation; for hindrances of a temporary nature however the release shall only be for the length of the hindrance plus a reasonable re-startup period. If a delivery in this event is delayed by more than one month, then – subsequent to a further remedy period set by the customer of at least three weeks - both we and the customer shall be entitled to withdraw from the contract in as far as it involves the volume of goods affected by the hindrance and thereby excluding any and all further mutual claims of the parties.
2.4 If a delivery date is exceeded the customer may set a reasonable remedy period for delivery. If we exceed this second delivery date by more than three weeks the customer may withdraw from the contract.
2.5 For purchase contracts, shipping shall be to the place indicated on the order certificate, and at the risk of the customer. Risk shall transfer to the customer at the latest upon our handing over of the goods to the shipper, freight company or other transporter. Should shipping be delayed for reasons for which the customer is at fault, the risk is deemed to transfer from the date the goods were ready for shipping if the customer was informed of such.
2.6 The type and means of shipping will be chosen by us. We may make partial deliveries, to an extent which can reasonably be accepted by the customer.
3. PRICES AND PAYMENT
3.1 Our prices are exclusive of VAT at the current legal rate.
3.2 We reserve the right to increase prices in the event we experience cost increases subsequent to conclusion of a contract, in particular due to tariff agreements or materials price increases. We will document such increases to the customer at its request.
3.3 Cash advance payments are required for all deliveries. If as an exception delivery against invoice has been agreed, payment shall be due in Euros and without deduction, within 10 days from receipt of invoice.
3.4 The customer may not deduct or withhold amounts from due payments due to offsetting, withholding claims or for other reasons, unless the counterclaim on which it is based is undisputed between the parties or has been confirmed by a court of law. The customer shall only be entitled to exercise a right of withholding if the counterclaim has the same contractual basis.
3.5 In the event of default in payment by the customer, we shall charge interest of 8 percent above the base rate p.a. as set out by § 247 BGB. The customer may mitigate this if it is able to show that our actual damages incurred in default were less.
3.6 We are not obligated to accept bills of exchange, checks or other pay orders. Discount and bank charges shall in all events be borne by the customer. We assume no warranty for submission made on time and for protests of payments.
4. RESERVATION OF TITLE
4.1 We reserve title to sold and delivered goods up to such time as all claims against the customer arising from the business relation have been satisfied.
Should securities provided us for reservation of title exceed the coverage amount of 150% of the secured claims, we shall, upon the request of the customer, release securities, whereby it is at our discretion which securities are chosen for release. For calculation of the coverage, the basis shall be – for title-reserved goods – their market price, and - for secured claims – their nominal value, at the time of our decision regarding the request for release.
4.2 The customer is not entitled to place a lien or chattel mortgage on goods to which we hold title. Should a third party attempt to attach goods to which we hold title, the customer is obligated to disclose our title and inform us immediately. The customer is responsible for protecting the goods from attachment by third parties.
5. LIABILITY FOR DEFECTS
5.1 The customer shall carefully and fully inspect the goods immediately upon their receipt. Recognizable defects, incorrect volume or incorrect goods must be notified to us in writing within seven days from receipt. Otherwise the goods are deemed to have been approved. In the event of defect claimed by customer, the customer must describe the defect in writing and in particular inform us in what way and under what circumstances the defect arose. Should a defect be discovered which was not apparent upon first inspection, the customer shall likewise inform us immediately upon such discovery.
5.2 Indications concerning our products and their uses published in our catalogues, brochures, presentations and manuals, in both text and picture form (e.g. descriptions, photos or drawings) are for the depiction of our products’ qualities and their uses; they do not represent a guarantee concerning durability or characteristics, but are in accordance with our knowledge at the given time. Any other manufacturing indications are non-binding. We further assume no liability for improper or incorrect use, in particular for incorrect applications by the customer or third parties, or for incorrect or negligent handling or treatment, in particular by untrained personnel.
5.3 If the notice of defect is valid, we will remedy the matter, at our choice either by removing the defect or by delivery of a replacement which is free of defects. If the contract cannot be fulfilled in this manner or the customer cannot reasonably be expected to accept this or wishes to dispense with it because
- we have given our earnest and final refusal to fulfil the contract, or
- there are special circumstances which, under consideration of the interests of both parties, justifies immediate withdrawal (§ 323 para. 2 BGB),
then the customer is immediately entitled to reduce the purchase price or at its discretion to withdraw from the contract and to demand damage compensation in lieu of performance or compensation for expenses undertaken in vain (§ 284 BGB) as per point 6.
5.4 Claims of the customer based on defect liability shall be limited to one year after receipt of goods.
6. LIMITATION OF LIABILITY
6.1 We shall only be liable for damage compensation – based on whatsoever legal grounds – if the damages were caused by breach of a substantial contractual obligation (cardinal obligation) or due to gross negligence or intent. In the event of any breach of an obligation due to intent or gross negligence on the part of a vicarious agent of ours which is not a representative of us under law nor a management-level employee, we shall only be liable for breach of a cardinal obligation.
6.2 In all events, our liability for slight negligence, or for intent and gross negligence where the actions are by those persons set under 6.1, second sentence, shall be limited to usual damages which may typically be foreseen in such cases.
6.3 In the event of 6.2 above, we shall not be liable for indirect damages, consequential damages of a defect, loss of profit or savings; the maximum amount of liability in these cases shall be the amount of the purchase price.
6.4 None of the exclusions and limitations of liability set out herein shall apply in the event of injury to life, limb or health of a person.
6.5 Claims of the customer for damage compensation in lieu of performance, as well as compensation claims due to consequential damages of a defect shall be limited to one year after receipt of goods. This deviation, which is shorter than the mandatory limitation period, shall not apply to damages due to culpable injury to life, limb or health of a person as well as intent or gross negligence. The shorter period shall also not apply to liability for damages due to breach of a substantial contractual obligation in the event of slightly negligent actions.
7. 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 is further responsible himself for ensuring that the goods meet all applicable licenses and standards for their envisaged use or further operation. As long as we retain title to the goods, the customer must observe all instructions, warnings and other notifications concerning use, storage or handling of goods, as issued by us.
8. RETURN OF GOODS / RECYCLING
8.1 Notwithstanding the provisions on liability for defects under point 5, goods sold and delivered to customer may not be returned without our prior written consent. Goods sent back with our consent must be sent at the cost of the customer, in the original packaging or an equally secure packaging and be unaltered and not missing parts.
8.2 The customer undertakes the obligation to dispose of the goods after completed use, at his own cost and in accordance with the laws. The customer must ensure that any commercial third party to which he passes on the goods is also obligated contractually to properly dispose of the goods after completed use at the latter’s cost and to ensure that this obligation is further passed on in the event the goods are again passed on.
Sould the customer fail to thus obligate a third party to which it passes on the goods, then the customer is obligated, at its cost, to accept return of the goods after completed use and to properly dispose of them in accordance with the laws.
9. GENERAL PROVISIONS
9.1 Should we not immediately initiate litigation in the event of a breach of contract by the customer, this shall not be construed on our part as a waiver of our right to do so at a later time.
9.2 Should a provision of these General Business Terms and Conditions be invalid, the validity of the remainder of the provisions shall remain unaffected thereby.
9.3 These General Business Terms and Conditions and the order contracts concluded on the basis of them are subject to German law. The provisions of the CISG dated April 11, 1980 and private international law shall not apply.
9.4 If the customer is a merchant, a legal entity of public law or represents special funds under public law, then the sole place of jurisdiction is Frankfurt am Main. In the event we are the initiator of litigation, claims may also be filed at the general place of jurisdiction of the customer.
Tel.: +49(0)6196-523 81 80
Fax.: +49(0)6196-523 81 89