Three in One Entertainment & Consulting GmbH
Amtsgericht Hamburg – HRB 121467
Programming: Mathias Gumz – 2hoch5.com
General Terms and Conditions of Business – August 2014
Our deliveries, services and offers – including future ones – are provided subject exclusively to our GTCBs. These GTCBs form part of all contracts; they apply even if not specifically referenced. Our GTCBs only apply vis-à-vis entrepreneurs [“Unternehmer”] or vis-à-vis legal entities or special funds constituted under public law (German Civil Code [BGB] § 14 and § 310). The customer’s general terms and conditions of business do not apply, even if we do not object to them separately. They do not become part of the contract even if the order is accepted or filled without reservation.
II. Formation of Contract
Our offers are non-binding and without obligation. They are based on information provided by the customer, without knowledge of the customer’s circumstances or requirements. The customer bears the risk that the Products offered on this basis may not correspond to the customer’s needs. No contract is formed until a written order confirmation has been provided. Oral and phone agreements are only legally valid if we confirm them in writing. We only uphold contractual guarantees that we have explicitly extended in writing. We reserve the right to make changes to reflect technical progress.
Our list prices apply, as they may change from time to time. Unless agreed otherwise, the prices are ex works and do not include value-added tax or additional services such as packaging, loading, freight charges, unloading, transportation insurance, assembly, customs, installation, implementation, introduction, training, maintenance, out-ofpocket expenses, travel costs or other expenditures.
IV. Delivery/Passage of Risk
We will ship at the customer’s risk and expense without guaranteeing that the cheapest method will be used. The customer is always responsible and liable for export clearance. The customer agrees to comply with the provisions of German foreign trade law in case of exports. Partial, excess, short or early deliveries are allowed as long as they are not unreasonable. Delivery times are only approximate unless we have expressly agreed to a fixed delivery time. Delivery times begin upon receipt of the order confirmation, or once all technical and commercial questions have been resolved, whichever comes last. We will comply with delivery deadlines subject to timely delivery by our own suppliers; we will provide notifications of delays. Risk of accidental loss and deterioration passes to the customer on or before acceptance or handover to the person carrying out the shipment. If the acceptance or shipment is delayed due to circumstances beyond our control, risk will pass to the customer upon issuing the ready-to-accept or ready-to-ship notice. We will insure the Products and/or shipping at the customer’s expense if so instructed in advance by the customer. Force majeure events, government-imposed conditions, and other circumstances for which we are not at fault (for example, strikes, difficulties in procuring materials, civil unrest, embargoes, travel warnings issued by the German Federal Foreign Office) that render our performance or that of our suppliers impracticable or impossible other than temporarily, exempt us from our obligation to perform for the duration of their effects. We are not liable for faults of our suppliers; any claims for damages against these suppliers will be assigned to the customer. The customer may withdraw from the contract if he can no longer be reasonably expected to accept the delivery as a result. If the Products have to be accepted, risk will pass upon acceptance. The acceptance must be performed without delay on the acceptance date or, alternatively, after the ready-to-accept notice is issued. The customer may not refuse acceptance due to an insignificant defect. If the acceptance is delayed due to circumstances beyond our control, risk will pass to the customer on the day following the issuance of the ready-to-accept notice.
The customer bears the storage costs after the risk passes. The right to claim and prove that storage costs are higher, lower or non-existent remains reserved. Our liability for a delayed delivery is governed by the liability provisions of these GTCBs.
V. Retention of Title
The customer will grant us the following security until the settlement of all the claims (including any and all outstanding balances on running accounts) that the customer owes to us now or in the future on any legal grounds whatsoever; we will release the security at our option on request insofar as ist value exceeds the secured claims by more than 20 %: We reserve title to the Products until all payments owed under the business relationship have been received. Unless explicitly agreed otherwise, we reserve all rights – including, but not limited to, copyrights, ownership rights and other intellectual property rights – in and to all specimens, tools, specifications, models, plans, data, drawings, tangible and intangible information, and similar items provided to the customer in electronic or any other form. This also applies if compensation (tooling costs) has been paid for engineering the tool. Any reproduction or release to third parties is prohibited.
We reserve the right to revoke the possible grant of usage rights from the customer if the customer is more than 30 days in default of payment. The following applies while we retain title:
– The Products remain our property.
– The customer keeps the Products in good condition.
– The customer has a revocable right to sell and process the Products in the ordinary course of business, provided he is not in default.
– If third parties attempt to attach the Products, including, but not limited to, by means of enforcement measures, the customer will inform the third party of our ownership interest and notify us forthwith. The customer will reimburse us for the costs of our intervention if we cannot recover the costs from third parties. We may withdraw from the contract and require the customer to immediately restore the Products to us or, if applicable, assign his rights of restoration against third parties if the customer breaches the contract by, without limitation, defaulting on payments or filing for bankruptcy (enforcement event). The customer has no right of retention in this case. This is without prejudice to claims for damages, including claims for compensation of lost profits. We can satisfy the debt owed by selling the repossessed Products by private contract.
The customer must carefully inspect the Products without unreasonable delay upon receipt. We must be notified of any defects in writing without unreasonable delay (“notice of defects”). Damages sustained in transit must be documented vis-à-vis the carrier. German Commercial Code [HGB] § 377 applies in all other regards. If no notice is given, the delivery is deemed to be free from defects, unless the defect in question was not detectable during the inspection. Notice of such defects must be given immediately after discovering them. Any resale, installation or any other use of allegedly defective Products is deemed approval of the Products, indicating performanc as contracted, and to that extent precludes the possibility of claims for defects. By negotiating about notices of defects, we do not waive the defense that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects. We extend no guarantee of compliance with any special regulations that apply to the customer’s business or to imports and exports, nor do we guarantee that any necessary permits and approvals have been obtained. The customer bears the responsibility and liability for any re-export. The obligation to accept deliveries is not affected by opposing regulations or the absence of permits and approvals.
We are entitled to deviate from the stipulated quality or quantity standards due to irregularities in materials (a) this does not restrict the usability of our Products for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the change(s) and/or deviation(s).
The customer must give us the requisite time and opportunity to – at our option – perform any repair or provide any replacement that we deem necessary; otherwise, we are exempted from all liability for the resultant consequences. If the customer or a third party performs improper repairs without previously giving us the opportunity to cure the defect, we will not assume liability for the resultant consequences. This also applies to modifications made to the Products without our consent.
We bear the expenses necessary to cure the defect to the extent they have not been increased by the transportation of the Products to a location other than the place of performance. The customer is liable for any unjustified notices of defects if the defect’s cause lies within the customer’s area of responsibility and he acted at least negligently in failing to recognize this fact. We will bill the customer for any expenses not attributable to us under our liability for defects. Claims for defects are excluded for used Products unless the defect was concealed with an intent to deceive or relates to a contractual guarantee as to certain characteristics. We do not extend any warranties in cases of inappropriate or improper use, improper assembly or placement into service by the customer or third parties.
This also applies to any modifications made without our approval to the Products or replacements of parts that do not conform to the original specifications, unless the defect is not caused thereby. The customer only has remedies over against us as set forth in German Civil Code [BGB] § 478 to the extent that the customer’s agreements with the consumer do not go beyond the statutory claims for defects. Unless agreed otherwise, the period of limitation for claims for defects expires one year after the handover/shipment date unless the law prescribes longer periods under German Civil Code [BGB] § 438 (1) (2) (construction and construction materials) and § 634a (1) (2) (construction defects), the defect was concealed with intent to deceive, or it relates to an injury to life, limb or health or to a contractual guarantee. The period of limitation is only tolled in accordance with German Civil Code [BGB] § 479 if the customer has demonstrably extended a warranty to his own customer. Any further claims or claims not governed by these GTCBs that the customer may have against us due to a defect are excluded.
If we, our statutory agents, or agents for whom we are vicariously liable, commit a culpable breach of duty, we are liable for damages due to any injury resulting therefrom to life, limb or health as per the statutory provisions. The following applies to all other damages inflicted by us, our statutory agents or agents for whom we are vicariously liable:
– In the case of damages due to a willful or grossly negligent breach of duty, we are liable as per the statutory provisions.
– In the case of damages due to a slightly and/or grossly negligent breach of material contractual duties, we are only liable for the foreseeable damages which are typical for the contract.
– In the case of damages due to a slightly negligent breach of an immaterial contractual duty, we are not liable for damages.
– Material contractual duties are duties (a) whose satisfaction is essential to the proper performance of the contract and (b) upon whose satisfaction the customer may reasonably rely.
The liability disclaimer and limitation do not affect the customer’s statutory rights to withdraw from the contract. The customer will maintain his own insurance in the scope customary for the industry (e.g. business interruption insurance). Our liability is reduced accordingly in the case of contributory fault by the customer.
IX. Property Rights/Non-Disclosure
If using the Products infringes on industrial property rights or copyrights, we will, at our expense and option, either procure a right of use for the customer or modify the Products so they are non-infringing or replace the Products with non-infringing ones. If this is impracticable for us, the customer may assert his right to withdraw in this case. This obligation only exists if the customer notifies us of such asserted claims without undue delay, refuses to acknowledge the infringement and we retain the ability to use all defensive measures and negotiations.
The customer will keep all the contents of the contract strictly confidential, including, but not limited to, prices, discounts, knowhow and other business secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our express written approval. This does not, however, apply to content which is publicly known without violating the non-disclosure obligation. The customer will impose the same non-disclosure obligation on his employees and associate companies and on third parties to whom the content is disclosed. We may cite the customer and the project as a reference.
X. Final provisions
These GTCBs also apply to associate companies of the customer within the meaning of German Companies Act [Aktiengesetz] § 15. The customer will bind his associate companies to observe these GTCBs. Amendments and modifications hereto that are not based on an individual agreement must be made in writing (including fax). This also applies to a waiver of the written form requirement. Should provisions of these GTCBs be or become invalid, the validity of the remaining provisions will be unaffected thereby.
The customer may not assign rights granted hereunder to third parties without our consent. German Commercial Code [HGB] § 354 a remains unaffected thereby.
The German wording controls in cases of doubt if the contract is drawn up in more than one language. German law applies. Unless agreed otherwise and irrespective of the agreed upon Incoterm, the place of our registered office is the place of performance.
All cross-border legal disputes arising out of or in connection with the contract will be settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce. The court of arbitration consists of three arbitrators. It sits in Zurich, Switzerland. German law applies unless national law inevitably conflicts with it.
If the customer is a commercial enterprise based in Germany, the place of our registered office is the exclusive place of jurisdiction. However, we are entitled to bring action against the customer at the court that has jurisdiction over the place of the customer’s residence.