Terms and Conditions
General InformationAll contracts and / or orders between / made by 010digital GmbH are based on the following general terms and conditions:
Any supplier or customer agrees to these General Terms and Conditions without further notice by submitting a order or confirmation or by delivery of any kind of goods and services. Any other kind of regulations and / or General Terms and Conditions, 010digital GmbH only accepts if they have been done in written manner and signed by the executive board of the 010digital GmbH.
Terms and Conditions of Delivery & SalesVersion March 2014
All of our deliveries and services to individuals, companies, legal entities subject to public law or special assets governed by public law are governed exclusively by the following terms and conditions:
I. Offer and Acceptance / Written Form
II. Prices / Processing Fees
III. Delivery Times / Default / Schedule Transactions
IV. Packaging / Shipping / Transfer of Risk
VI. Retention of Title
VII. Warranties / Limitation of Liability
VIII. Guaranty / Procurement Risk
IX. Use of Software
I. Offer and Acceptance / Written Form1. Any delivery contract as well as any changes, ancillary agreements and other agreements become binding only upon confirmation by us. The delivery contract as well as any changes, ancillary agreements, declarations regarding its termination or other declarations and notifications require text form (§ 126b German Civil Code - BGB) to the extent these terms and conditions do not specify otherwise.
2. The purchaser accepts our General Conditions of Sale and Delivery at the time of receipt of our confirmation and/or the acceptance of the ordered goods or services. We are not bound by general terms and conditions of the purchaser that differ from these general conditions. Such deviating terms and conditions do not become part of the contract, either by acceptance of the order or implicitly by another act.
II. Prices / Processing Fees1. The applicable prices consists of prices and discounts applicable on the date of delivery or performance plus the relevant statutory value added tax.
2. We have the right to invoice an additional processing fee for an order if quantities do not reach the minimum quantities and/or minimum order value as contained in the relevant price list.
III. Delivery Times / Default / Schedule Transactions1. Delivery periods begin to run the later of (i) confirmation of the order; and (ii) final agreement regarding all matters that had to be decided prior to start of production.
2. In case of unforeseen and unavoidable events in the production or other obstacles such as acts of god, labor disputes or other disruptions in our own business or in the business of our suppliers as well as delayed delivery by our suppliers will entitle us to extend the delivery period by a period of time equal to the duration of such force majeure event. We will inform the purchaser of the start and end of such circumstances as soon as possible.
3. To the extent we are in default and the purchaser incurs damages as a result thereof, the purchaser may demand a default compensation. Such default compensation will be for each full week one-half percent (0.5%) of the value of the part of the total delivery that could not be used as anticipated by the contract as a result of the delay, but in no event more than five percent (5%) of such value. All other rights for delay are governed exclusively by Article VII Sections 2 and 3 hereof. The purchaser may rescind the contract in accordance with the applicable statutory provisions only if we are responsible for the delay of the delivery.
4. To the extent that we have agreed with a purchaser that a particular delivery volume will be delivered within a specified time period (Agreed Period) and that the purchaser has the right to determine the specific delivery date, the purchaser must notify us of the desired delivery date not less than twelve (12) weeks prior to such date. After the Agreed Period has expired, we may invoice the purchaser for any volume of products with respect to which delivery has not been requested and deliver such products.
5. Partial deliveries are permissible to the extent such partial deliveries are not unreasonably burdensome for the purchaser.
IV. Packaging / Shipping / Transfer of Risk1. Delivery is EXW (most recent Incoterms) from a location designated by us, and the method of packaging and the packaging material will be determined by us in our sole discretion.
2. Palettes, containers, and other reusable packaging remains our property and must be returned by the purchaser to our delivery center without undue delay and at no costs to us. We will invoice disposable packaging at cost and will not take back such packaging.
3. The purchaser is responsible for additional costs for express shipping and for the mailing costs for small item deliveries
V. Payment1. Payment must be made without deductions to one of our accounts within thirty (30) days of the date of the invoice. We grant a two percent (2%) discount for payment within fourteen (14) days of the date of the invoice if the purchaser is not late with respect to the payment of other claims we may have.
2. The purchaser is in payment default as soon as the agreed upon payment date has passed unless payment does not take place due to a circumstance for which the purchaser is not responsible.
3. It is not permissible to hold back payments by reason of counter claims or counter rights or to set off with counter claims or counter rights unless such counter claims or counter rights are undisputed, have been finally judicially determined, or are ripe for decision.
VI. Retention of Title1. We retain title to all goods delivered by us until all claims resulting from the business relationship with the purchaser have been satisfied (Retained Goods). In cases of current accounts the retained property is deemed to be collateral for the claim to the balance of the account.
2. If the goods with respect to which title has been retained become part of a new item by way of connection or is built-in and if such item is owned by the purchaser, it is hereby agreed that the purchaser transfers coownership to the new item to us and acts as bailee without compensation for such item. Our co-ownership share shall be determined by the relationship of the value of the goods with respect to which title was retained to the value of the new item.
3. The purchaser hereby assigns to us all claims against its customers that result from the sale of the goods with respect to which title was retained. If the goods with respect to which title was retained are sold together with other goods that are not owned by us, then the purchaser assigns to us such part of the claim resulting from the sale that is equal to the invoiced amount for the goods with respect to which title was retained. If an item with respect to which title was retained is only partially owned by us and is sold, the part of the claim resulting from the sale that is assigned to us will be equal to our percentage of ownership in the goods with respect to which title was retained.
4. We are granting revocable authority to the purchaser to collect any claims resulting from the further sale of the Retained Goods. If requested, the purchaser must notify its customers of the assignment of the claim and deliver to us all information and documents required to enforce our rights.
5. We are obligated to release the collateral to which we are entitled to the extent that the value of such collateral exceeds the claims to be secured by more than ten percent (10%).
6. The purchaser must notify us without undue delay if the items subject to retention of title are attached or if our rights are adversely affected by third parties in any other way.
7. To the extent mandatory legal provisions of the relevant foreign country do not contemplate a retention of title within the meaning of Article VI 1-6, but such countrys legal system provides for other forms of security to secure payment claims for invoices by sellers, we hereby reserve such rights. The purchaser is obligated to cooperate with us with respect to all actions we may reasonably request to be undertaken in order to protect our title or the replacement rights with respect to the retained goods.
VII. Warranties / Limitation of Liability1. The statutory rights of the purchaser pursuant to § 437, No. 1 German Civil Code (BGB) apply subject to the following conditions:
a) To the extent supplied goods are unusable in whole or in part due to defects we will, in our reasonable discretion, choose to cure the defects at no cost to the purchaser or deliver, at no cost to the purchaser, goods without defects (collectively, Supplementary Specific Performance). In addition we will bear the purchasers direct costs of disassembly and assembly. Such an obligation to bear the direct disassembly and assembly costs does not exist if the costs are incurred outside of Germany. The obligation also does not exist if there is no reasonable relationship between such costs and the delivery price of the defective delivered goods. All other costs are borne by the purchaser. We are not responsible for damages due to natural wear and tear during the time of use.
b) The purchaser must grant to us a reasonable period of time and reasonable opportunity to permit Supplementary Specific Performance, which Supplementary Specific Performance will be performed by us in our reasonable discretion. The purchaser has the right to perform Supplementary Specific Performance itself or to cause a third party to perform such Supplementary Specific Performance and, in each case, demand reimbursement of the costs associated therewith, only
(i) in case of emergency relating to operational security,
(ii) to avoid unreasonably high damages or
(iii) when we are in default with respect to the Supplementary Specific Performance. The purchaser must notify us immediately of an occurrence of any of the events described in the previous sentence.
2. The additional statutory rights of the purchaser apply subject to the following:
We are liable only in one of the following events and in each case our liability is limited to the foreseeable damages that are typically in transactions of this kind:
(1) Willful breach of duties
(2) Grossly negligent breach of duties by our statutory representatives or persons employed by us in the performance of our obligations (Erfüllungsgehilfen);
(3) Willful or negligent injuries to life, body or health;
(4) fraudulent withholding of information about defects or guaranties for the properties of delivered goods;
(5) willful or negligent breach of significant contractual duties -- however, in cases of
(i) simple negligence or
(ii) gross negligence by individuals other than executives (leitende Angestellte), limited to the damages reasonably foreseeable for the relevant type of contract;
(6) to the extent we are liable pursuant to the Product Liability Act (Produkthaftungsgesetz) for personal injury or property damage to privately used objects.
3. Our liability is hereby excluded unless Article III Section 3 or Article VII Sections 1 or 2 provide otherwise.
4. Defects must be notified to us after discovery without undue delay. The delivered goods with respect to which defects have been notified must be made and kept available to us. We will bear the costs for shipment back to us only if such shipment takes place at our request.
5. The purchaser bears the burden of proof that all requirements are met for the claims alleging our breach of duty to be valid as asserted by the purchaser. This burden of proof applies also to our willful misconduct or negligence.
6. Claims for defects are subject to a time bar period of 24 months beginning with the delivery of the delivered goods unless applicable mandatory statutory law provides for a longer limitation period.
7.§ 350 of the German Civil Code applies mutatis mutandis to statutory rescission rights.
VIII. Guaranty / Procurement RiskGuarantees and procurement risks (Beschaffungsrisiko) require, in order to be validly assumed by us,
(i) a specific assumption of risk expressly designated as such and
(ii) written form.
The purchaser agrees with us that statements in our catalogues, printed material, brochures and other general information in no event and at no time constitutes a guaranty or the assumption of the procurement risk.
IX. Use of SoftwareTo the extent the scope of delivery includes software, we hereby grant to the purchaser a non-exclusive, nontransferable license that is limited to a definite time period pursuant to the provisions of the particular delivery, to use the software and its accompanying documentation in connection with the relevant delivered item. The software may not be used in connection with more than one delivered item. The granting of sub-licenses is not permitted.
The purchaser may reproduce, revise, translate or modify from object code to source code the software only within the statutorily permitted scope (§§ 69a et seq. German Copyright Act -- Urhebergesetz). The purchaser may not remove manufacturer information -- in particular copyright labels or notices -- or make any other modifications without our prior written express consent.
We reserve all other rights to the software and the accompanying documentation, including copies.
X. ConfidentialityThe purchaser and we will keep confidential all information received from the other party. This confidentiality provisions continues to apply after termination of the delivery contract. The confidentiality obligation does not apply to information that (i) the receiving party had already obtained legitimately at the time of disclosure, provided such information was not subject to a confidentiality obligation or (ii) that the receiving party later obtains independently and legitimately without being obligated to keep such information confidential, or (iii) that is or becomes generally known without any breach of contract by one of the parties. Each party retains title and all rights to all documents or other media made available to the other party. Such documents or other media may be reproduced, replicated or transferred to third parties only with the consent of the party making them available.
XI. Miscellaneous1. The place where our delivery originates shall be deemed the place of performance.
2. The place of competent jurisdiction is Munich. Notwithstanding the foregoing, we will have the right to bring actions also at the principal place of business of the purchaser.
3. The contractual relationship is governed by the laws of the Federal Republic of Germany except for the rules governing the of conflict of laws.
The application of the Convention for the International Sales of Goods(CISG) is expressly excluded.
4. The failure to assert, in whole or in part, any rights from this delivery contract or to assert such right belatedly shall not be construed as a waiver of this or any other right.
5. If a specific provision of these General Conditions of Sale and Delivery is or becomes invalid, the remaining provisions shall remain valid.
6. Please note that we store and process personal data in the course of business transactions. All legal regulations concerning data privacy are observed.
Rental & Services AgreementVersion March 2014
I. Physical Condition of Rented Item
II. Use of Item
III. Responsibility for Use - Indemnity
IV. Responsibility for Item
V. Item Failure
VI. Return of Item
IX. Evidence of 010digital GmbH Ownership
X. Emergency Return
XI. No Waiver
XII. No Pledges
XIV. Collection Costs
XV. Limitation of Warranty
XVI. Modification of Agreement
XVII. Limitation of Damages
XVIII. Other Terms
XIX. Certain Definitions
I. Physical Condition of Rented ItemCustomer acknowledges that prior to taking any rented item, he has examined it, saw it in operation (if appropriate), he is aware of its condition and that it is in good condition except for any defect noted on this contract. It shall be lawful for 010digital GmbH or its agents at all reasonable times to enter the premises upon which any rented item is kept for the purpose of viewing the state and condition of said rented item. Customer´s agrees to return all rented items in the same condition as received, except for ordinary wear and tear.
II. Use of ItemCustomer agrees he is satisfied with the instruction given by 010digital GmbH for, or that he is familiar with, the proper and safe manner of using all items, and he represents to 010digital GmbH that he is so familiar. All items shall be used in accordance with the manufacturer's and 010digital GmbH instructions and manuals. Customer further agrees that all rented items will be used solely by him at the address designated and solely for the purpose tor which such items were manufactured and intended. Assignment, loaning, subleasing or improper use of any rented item is prohibited.
III. Responsibility for Use - IndemnityFrom the time any rented item leaves 010digital GmbH´s premises until its return, Customer is responsible for such rented item and its use. Customer assumes all risks inherent in the operation and use of any item and agrees to assume the entire responsibility for the defence of, and to pay, indemnify and hold 010digital GmbH harmless from, and hereby releases 010digital GmbH from any and all claims for damage to property or bodily injury (including death) resulting from the use, operation or possession of any item, whether or not it be claimed or held that such damage or injury resulted in whole or in part from 010digital GmbH´s negligence, from the defective condition of the item or from any cause.
IV. Responsibility for ItemFrom the time any rented item leaves 010digital GmbH´s premises until it is returned, the Customer is responsible for such rented item. If such rented item is lost, stolen or damaged under any circumstances while rented, regardless of fault, the Customer shall be responsible for all charges, including labour Costs, to repair or to replace the rented item and for lost rental during the time the rented item is being repaired or replaced. If the rented item is returned not clean, a cleaning charge will be imposed. Unless Customer shall have paid for insurance as provided by 010digital GmbH separately, the Customer shall, at his own cast and expense, but for the benefit of the 010digital GmbH, immediately insure the rented item for its full replacement value against loss or damage by fire, theft, or casualty by a qualified reputable insurance company and shall deliver the said insurance policy to 010digital GmbH, together with the receipt for premiums thereunder, upon request of 010digital GmbH. If 010digital GmbH, by reason of such insurance, shall receive any sum or sums of money, such amounts may be retained and applied by it towards the repair or replacement of the said rented item, or toward rental or other charges at 010digital GmbH's option.
V. Item FailureCustomer agrees to discontinue immediately the use of any rented item should it at any time become unsafe or in a state of disrepair, and will immediately (one hour or less) notify 010digital GmbH of the facts and 010digital GmbH agrees in its discretion and at its option to make the item safe within a reasonable time, provide Customer with a like item, make a like item available at another time, or adjust the rental charges (unless the rented item has been subjected to misuse, abuse, or neglect; improper installation, repair or maintenance; or has been repaired by persons not authorized by 010digital GmbH or the relevant manufacturer or with manufacturer non-approved parts, in which case 010digital GmbH shall not be obligated to do any of the foregoing.) This provision does not relieve Customer from the obligations imposed by other Paragraphs, including 4 and 6. In all events, 010digital GmbH shall not be responsible for any indirect, incidental, special or consequential damage resulting from equipment failure or defect or for any other reason under this agreement or otherwise.
VI. Return of ItemAll rented items are the property of 010digital GmbH and are rented to the Customer subject to this agreement for rental charges and for the period of time noted on the front. Customer agrees to return rented items at the location where rented (or other location designated by 010digital GmbH) at the time and date specified on the front under "To." Customer agrees that if he desires to extend the term of his rental beyond such time and date, he will immediately so notify 010digital GmbH to obtain 010digital GmbH´s approval and the terms for such extension. If this agreement has not been extended and the Customer fails to return any rented item when due in, 010digital GmbH shall, in addition to all other remedies, be entitled to rental at two times the quoted rate. In addition, Customer acknowledges that the failure to return any rented item within the contract time, and the sale or concealment of rented property, are prohibited, and that such action may constitute a crime.
VII. PaymentThe Customer and any representative or principal shall be responsible for and shall pay 010digital GmbH all charges (including rental and service charges) and/or purchase prices hereunder and shall promptly reimburse 010digital GmbH for the cost of fulfilling all obligations of Customer which 010digital GmbH elects to perform pursuant to Section 8 (c) below (all of the foregoing, along with all other amounts owing to 010digital GmbH hereunder, hereinafter collectively referred to in this agreement as "charges"). All charges not paid in advance are due upon return (in the case of rented items), at the time services are completed, or at the time otherwise called for hereunder. If any charges are charged to someone other than the Customer, the Customer represents he is the agent of such party and has the right to charge this rental or purchase. The Customer nevertheless will remain liable for the charges and for the other obligations and responsibilities of the Customer hereunder. If charges are not paid within 10 days of their due date, 010digital GmbH shall be entitled to interest at the maximum rate permitted by law.
VIII. DefaultIf the Customer shall default on any of the terms, covenants and conditions herein, or in punctually making any of the payments called for herein, or if any execution or other writ or process shall be issued in any action or proceeding against the Customer, whereby any rented item (or purchased item not fully paid for) may be seized or taken or distrained, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted by or against the Customer or his property, or if the Customer shall enter into any arrangement or composition with his creditors, or in the event that any judgement is obtained against the Customer, then and in any such event, in addition to all other remedies 010digital GmbH may have, (a) all charges shall then become immediately due and payable without notice or demand, (b) 010digital GmbH shall have the option to retake immediate possession of any rented item (or purchased item not fully paid for) and (c) 010digital GmbH shall, at its option, have the right to perform Customer's obligations at Customer's expense. 010digital GmbH, its agents or employees may enter upon any premises where said items may be and may remove the same there from, with or without force and with or without notice of intention to retake the same without being liable to any suit or action or other proceeding by the Customer. Upon 010digital GmbH retaking possession of any rented item or purchased item not fully paid for pursuant to the provisions of this agreement, this agreement shall terminate without prejudice to any right or claim for arrears of rent, purchase price or other amounts, if any, on account of any preceding breach or breaches of this agreement, or the lass of rental for the balance of the unexpired term herein, or for any other claim that 010digital GmbH may have against the Customer.
IX. Evidence of 010digital GmbH OwnershipThe Customer agrees not to remove or cover any tag, nameplate or other thing on any rented item showing ownership of 010digital GmbH.
X. Emergency ReturnThe Customer does hereby grant to 010digital GmbH an option to terminate any rental or obligation to perform services under this agreement on 24 hours' written notice by registered mail or personal service. On the occurrence of said event, the Customer shall immediately return to 010digital GmbH at the Customer's risk and expense, any rented items as to which this rental agreement has been terminated, in the same condition as when first rented, and 010digital GmbH shall, thereupon said receipt, refund the unexpired portion of the rental. 010digital GmbH shall refund an appropriate portion of any fee charged for services terminated pursuant to this Section, such portion to be determined by 010digital GmbH in its reasonable judgement.
XI. No WaiverThe acceptance of the return of any rented item is not a waiver by 010digital GmbH of any claims that it may have against the Customer nor a waiver of claims for latent or patent damage to any rented item.
XII. No PledgesThe Customer agrees not to pledge, mortgage or in any way encumber any rented item herein.
XIII. PublicityIn all programs printed and distributed at all performances in which the rented item shall be used, credit for electric materials and lighting equipment shall be given to 010digital GmbH.
XIV. Collection CostsCustomer agrees to pay attorneys' fees, collection fees, court costs and any other expenses incurred in collecting any charges or enforcing any of 010digital GmbH rights under this agreement, in retaking any rental item or any purchased item not fully paid for, or otherwise in enforcing the terms of this agreement.
XV. Limitation of WarrantyEXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, ALL SERVICES PROVIDED, ALL ITEMS RENTED AND ALL ITEMS PURCHASED UNDER THIS AGREEMENT ARE PROVIDED, RENTED OR PURCHASED AS IS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
WITH RESPECT TO ANY RENTED ITEM WHICH BREACHES ANY WARRANTY, 010digital GmbH, AT ITS OPTION, SHALL REPAIR OR REPLACE SUCH ITEM, OR ACCEPT RETURN OF THE RENTED ITEM IN EXCHANGE FOR A REFUND OF RENTAL CHARGES FOR THE UNEXPIRED PORTION OF THE RENTAL TERM, AND THIS SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY WITH RESPECT TO ANY RENTED ITEM. WITH RESPECT TO ANY SERVICE PROVIDED HEREUNDER WHICH BREACHES ANY WARRANTY, 010digital GmbH AT ITS OPTION, SHALL RE-PERFORM SUCH SERVICE OR REFUND ANY APPROPRIATE PORTION OF THE CHARGE PAID THEREFORE, AND THIS SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY WITH RESPECT TO ANY SERVICE PERFORMED HEREUNDER. WITH RESPECT TO ANY PURCHASED ITEM, 010digital GmbH HEREBY ASSIGNS ANY MANUFACTURER'S WARRANTY TO CUSTOMER, TO THE EXTENT SUCH ASSIGNMENT IS PERMITTED. WITH RESPECT TO PURCHASED ITEMS, CUSTOMER'S SOLE REMEDY SHALL BE AGAINST THE MANUFACTURER UNDER THE MANUFACTURER'S WARRANTY.
XVI. Modification of AgreementNo right of 010digital GmbH may be modified and no extension of the term of this contract may be enforced against 010digital GmbH except in writing signed by 010digital GmbH and made apart of this agreement.
XVII. Limitation of DamagesIN NO EVENT SHALL 010digital GmbH BE LIABLE FOR DAMAGES RESULTING FROM OR RELATING TO ANY ITEM OR SERVICE WHICH EXCEED (AS RELEVANT) THE CHARGE FOR THE SERVICE, THE PURCHASE PRICE OR THE AMOUNT OF THE RENTAL PAID THEREFORE. UNDER NO CIRCUMSTANCES SHALL 010digital GmbH BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEOUENTIAL DAMAGES OF ANY KIND.
XVIII. Other TermsThis agreement shall be construed under the laws of Massachusetts (without reference to conflicts of laws), and no action to enforce or interpret this agreement shall be brought except in the courts of the Commonwealth of Massachusetts or the Federal courts located in Massachusetts. The unenforceability of any provision of this agreement shall not affect the other terms and provisions hereof, which shall remain in full force and effect. This agreement contains the entire agreement of the parties and supersedes and integrates all prior agreements, representations, warranties or covenants, written or oral. Captions are for convenience of reference and shall not be used in interpreting this agreement.
XIX. Certain DefinitionsAs used herein, the term "rented item(s)" refers only to item(s) which are under this agreement. The term "purchased item(s)" refers only to item(s) which are purchased under this agreement. The term "item(s)" refers to purchased and rented item(s) without distinction.
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