General Standard Terms and Conditions of Sony Optiarc Europe GmbH (valid from 01.08.2010)
§ 1 General
Our general terms and conditions apply to all deliveries and services, also in the future. They are applicable exclusively and only apply to entrepreneurs as defined in § 14 BGB (German Civil Code), with which we maintain business relations (hereinafter named "customer"). We do not accept any deviating or contradictory terms and conditions imposed by the customer unless we expressly accept their validity in written form. Our general terms and conditions also apply in case we make deliveries or provide services to the customer without reservations while being aware of such deviating or contradictory terms and conditions.
§ 2 Quotations
Our quotations are subject to change without notice. We reserve the right to technical alterations and changes of shape and color to the extent the customer may reasonably be expected to accept these.
§ 3 Acceptance of orders
Orders and other assignments are binding for the customer. We may accept such offer of a contract incorporated in such order or assignment within two weeks after receipt at our company. Such commitment becomes binding for us only after explicit written acceptance (acknowledgement of order). We may omit the acknowledgement of order in case of immediate delivery or performance.
§ 4 Prices and terms of payment
(1) Our prices are net ex warehouse including normal packaging and excluding shipment. All prices and incidental expenses, especially shipping costs, will be charged on the basis of the price list valid at the time the contract is concluded. Discounts must be agreed upon separately.
(2) The legal turnover tax is not included in our prices; it will be itemized in the invoice separately at the rate applicable on the day of invoicing.
(3) We reserve the right to modify our prices adequately if our subsuppliers modify prices after conclusion of the contract and shipment has not yet been made at the agreed delivery date. Upon request, we will document the price changes implemented by our subsuppliers.
(4) Payments are due within 30 days after invoice date in cash and without any deductions. Should the customer be in delay of payment, we are authorized to charge penal interest in the amount of 8 %. We reserve the right to put forward higher claims for damages caused by delayed performance.
(5) Counterbalancing is only admissible with undisputed and legally effective counterclaims. The customer has also no right to retention based on disputed counterclaims or counterclaims from other contractual relations.
(6) All our claims, including those for which payment by installments has been agreed, are due immediately. Any time allowed for payment is null and void if the date of required payment for settlement of a claim is not observed or the customer defaults on payment or the customer files for insolvency proceedings or the customer makes an oath of disclosure about his financial standing. In such case, we are also entitled to make deliveries outstanding only against advance payment or furnishment of collateral. In case such advance payment or furnishment of collateral is not effected within an appropriate period of time, we are entitled to withdraw from the contract.
(7) Irrespective of any deviating terms and conditions implemented by the customer, we are entitled to credit the customer’s payments first against prior debts, next against any incurred costs, next against interest, and last against the principal claim.
§ 5 EC-turnover tax on imports
(1) To the extent the customer has his legal domicile outside the Federal Republic of Germany, the customer is obligated to observe the EC regulations on turnover tax on imports. The customer will inform us about his turnover ID number and any changes to such number without further request. Upon request, the customer will disclose information on his capacity as entrepreneur, use and transport of the delivered goods, and also for statistical reporting requirements.
(2) The customer also agrees to reimburse us for any expended time and expenses we incur in context with missing or inadequate particulars about turnover tax on imports.
(3) We are not liable for the consequences of missing or inadequate particulars about turnover tax on imports unless we act intentionally or with gross negligence.
§ 6 Period of delivery
(1) Agreed delivery deadlines and the beginning of the delivery period stated by us are subject to timely receipt of correct deliveries from our subsuppliers by our company. This applies only if we are not responsible for the failure to deliver, especially in case of congruent cover business with our subsupplier. We will immediately inform the customer about the nonavailability of performance and will immediately refund the counter-performance. Compliance with our delivery commitment also prerequisites timely and proper contract performance by the customer. We reserve the right to defense of non-performance of contract.
(2) Should the customer default in accepting the delivery of goods or should he violate any other duty to cooperate, we are entitled to demand reimbursement for any damages incurred by us in this context. Under the conditions stated above, the risk of coincidental ruination or coincidental deterioration of the object sold passes to the purchaser at the point at which he defaults in accepting the delivery of goods or at which he is in debtor’s delay.
(3) Should the underlying purchase contract be a contract where time is of the essence as defined in § 323 sec. 2 No. 2 BGB (German Civil Code) or in § 376 HGB (German Commercial Code), we are liable in compliance with statutory provisions. We are also liable in compliance with statutory provisions in case the purchaser due to our default of delivery is entitled to claim that his interest in further performance of contract has lapsed. In any case our liability is restricted to foreseeable damages typical for this type of contract.
(4) We are also liable in compliance with statutory provisions in case the default of delivery is caused by intentional or grossly negligent violation of contract within our scope of responsibility. To the extent such default of delivery is not caused by intentional violation of contract within our scope of responsibility, our liability is restricted to foreseeable typical damages.
(5) We are also liable in compliance with statutory provisions to the extent the default of delivery within our scope of responsibility is caused by culpable violation of essential contractual obligations. In this case, our liability is restricted to foreseeable typical damages.
(6) To the extent our default of delivery is caused solely by culpable violation of a nonessential contractual obligation, the customer is entitled to claim payment of a flat-rate compensation for default of delivery of 3 % of the delivery value per full week of delay, however, no more than 15% of the delivery value. We are, however, not liable in case of ordinary negligence.
§ 7 Shipment – passage of risk
(1) Delivery is made ex our warehouse for the account of purchaser and at his risk unless stated differently in the acknowledgement of order. In case delivery free domicile is agreed, this will not affect the passage of risk.
(2) Risk passes to the customer when the object sold is transferred to the forwarding company or leaves our warehouse for the purpose of shipment. If such shipment is delayed due to circumstances within the customer’s scope of responsibility, the risk passes to the customer at the time he is notified of the readiness for shipment. In such case, we are, however, obligated to take out such insurance at the customer’s wish and expense as the customer desires. We are also entitled to invoice the incurred warehouse costs or a flat-rate sum of 0.5 % of the invoiced value of goods per month. In this case, the contract price resp. other consideration is due for payment at the time the goods are ready for shipment.
(3) We will insure the delivery by taking out a transport insurance policy at the customer’s request and expense.
§ 8 Warranty for defects
(1) The product qualities shall principally be defined solely in the product specifications Public statements, praises or producer advertisements may not be construed to be additional contractual specifications of the product quality.
(2) The customer is obligated to lodge written customer's complaint about obvious defects to us within a period of two weeks following receipt of the goods; in other case, assertion of warranty claims for damages is excluded. The deadline will be considered observed if the complaint is mailed within the time stipulated. The customer shall bear the burden for all prerequisites for complaint, specifically the defect itself, for the time the defect is determined, and for timely lodging of complaint.
(3) In case of defects, we will initially, at our discretion, furnish warranty by way of rework or replacement (reperformance).
(4) Should such reperformance fail, the customer may principally at his discretion demand reduction of purchase price or withdrawal from contract. However, the right to claim rescission of contract is excluded for only minor contract breaches, specifically in case of insignificant defects.
(5) In case customer opts for rescission of contract after reperformance fails, he is not entitled to any additional claims for damages due to the lodging of complaint.
(6) If the customer asserts claims for damages after failed reperformance, the goods remain with the customer, if such may reasonably be expected of him. Claims for damages are restricted to the difference between the purchase price and the value of the defective purchase item. This shall not apply if we fraudulently violated the contract.
(7) The period of warranty shall be 12 months; such period shall start with the transfer of risk. Any claims the Customer may have based on manufacturer's warranty shall remain unaffected.
§ 9 Industrial Property Rights
To the extent admissible and not agreed upon differently, we will not assume any liability for non-infringement of our products upon third-party industrial property rights. The customer agrees to notify us immediately if he becomes aware of such infringement or is reprimanded for such. If the delivered goods are built according to the customer’s designs or specifications, the customer will indemnify us from all claims put forward by third parties due to infringement of third-party industrial property rights. Appropriate advance payments will be made to cover any costs of litigation.
§ 10 Limitation of liability
(1) In case of slightly negligent violation of duties, our liability is restricted to predictable, contract-specific, direct average damage typical for the nature of our performance. In case of slightly negligent violation of inessential contractual duties, our liability is excluded.
(2) To the extent our liability for damages is excluded or restricted, this also applies in respect of the personal liability for damages of our salaried employees, wage earners, representatives, and persons employed by us in performing an obligation.
(3) The above limitation of liability shall not apply to the customer's claims in compliance with the product-liability law and to claims due to injury or impairment of health or to loss of customer's life.
§ 11 Retention to ownership
(1) We retain ownership of the sold object until all payments from the business relation with the customer are received.
(2) The customer is obligated to handle the sold object carefully; he is specifically obligated to appropriately insure the sold object at his own expense against fire and water damages and theft at reinstatement value. To the extent maintenance and inspection work is required, the customer will perform these at his own expense in due time.
(3) In case of seizures and other interferences by third parties, the customer will immediately notify us to enable us to file a suit acc. to § 771 ZPO (German Civil Action Code). Should the third party be unable to reimburse us for the legal fees and out-of-court expenses for a legal action acc. to § 771 ZPO, the customer is liable for our financial loss.
(4) In case the customer violates a contract, specifically in case of default of payment or violation of a duty as defined in sec. (2) and (3) of this contractual stipulation, we are entitled to cancel this contract and to demand surrender of possession of the goods.
(5) The customer is authorized to resell the sold object in the course of ordinary business transactions. However, the customer already now assigns to us all claims in the amount of the invoice total of our claim (incl. turnover tax) which arise from reselling the sold object to his buyers or third parties irrespective of whether the sold object was resold in its original state or after further processing. The claim assigned to us in advance by the customer also relates to the acknowledged balance as well as, in the case of the buyer’s insolvency, to the arising “causal” balance. The customer is authorized to collect this debt also after assignment. Our authority to collect the debt ourselves remains unaffected. We do, however, agree not to collect the debt as long as the buyer meets his payments from the revenues collected, as long as the customer does not default on payment and specifically does not file for insolvency proceedings or the customer does not stop payments. Should, however, this be the case, we may request the customer to inform us about the assigned accounts receivable and their debtors, to provide us with all particulars required for collection, to surrender all required documentation, and to inform the debtors (third parties) about such assignment.
(6) Processing or transformation of the sold object is always done for us. In case the sold object is combined with other objects not in our possession, we acquire co-ownership in the new object corresponding to the ratio between the value of the sold object (amount of the invoice total incl. turnover tax) and the other processed objects at the time of such processing. The terms applying to objects delivered under conditions also apply to the object created by way of processing.
(7) Should the sold item be inseparably combined with other objects not in our possession, we acquire co-ownership in the new object corresponding to the ratio between the value of the sold object (amount of the invoice total incl. turnover tax) and the other combined objects at the time of such combination. If combination is performed with the effect that the customer’s object must be considered principal object, the parties agree that the customer assigns prorata co-ownership to us. The customer subsequently safeguards the ensuing sole ownership or co-ownership for us.
(8) We agree to release the collateral to which we are entitled upon request by the customer insofar as the realizable value of our collateral exceeds the claims to be secured by more than 10%. We are entitled to choose the collateral to be released.
§ 12 Place of jurisdiction, place of performance, applicable law
(1) Place of jurisdiction for all disputes with fully-qualified merchants as defined in the HGB, legal persons under public law, or public-law special funds will be Munich. Munich is also place of jurisdiction if the customer has no general domestic place of jurisdiction, transfers his habitual residence or customary place of abode to a foreign country after the contract is concluded or if his habitual residence or customary place of abode are not known at the time the action is brought. We are, however, also authorized to bring action at the customer’s legal domicile.
(2) Place of performance for our deliveries and other performances as well as for the customer’s payments is the seat of our principal establishment.
(3) These Terms and Conditions and all legal relations between us and the customer are subject to the laws of the Federal Republic of Germany. Application of the International Sales of Goods (CSIG) is excluded.
§ 13 Escape clause
Should individual clauses in the contract with the customer including these general standard terms and conditions be or become ineffective in whole or in part or should an item have not been considered in the contract, this will not affect the validity of the remaining clauses. The ineffective or forgotten clause will be replaced by an appropriate clause which, to the extent legally admissible, comes closest to what the contractual parties intended or, following design and wording of the contract, would have intended if they had been aware of the ineffective or missing clause. The German version is solely authoritative for interpretation of these Standard Terms and Conditions.
