Conditions of Sale

Musikon Gmb, General terms and conditions and terms and conditions of sale

§1 Validity of the general terms and conditions and conditions of sale

The general terms and conditions and conditions of sale are valid, respectively, in their most recent form for all of our present and future sales and performances. Different customer conditions also do not apply if we do not once more explicitly contradict them. Variations from these general terms and conditions require the written form.

§2 Conclusion of contract

Our offers are - with reference to prices, as well- subject to change without notice and are not binding. Regarding specially prepared offers, we remain bound for a period of 30 calender days.

For their legal validity, orders and contracts require written confirmation or conformation by telex by us. This also applies to amendments, alterations and additional agreements. The purchaser is bound by a granted contract for four weeks from the accession.

§3 Prices

(1) All prices include statutory turnover tax.

(2) In so far as no other written agreement has been entered into, the prices are according to our currently valid price list and are to be understood as the purchase price from the production facility or warehouse in Berlin. At the customer's request, we undertake at his risk transport and packaging at cost price and conclude transport insurance in his name and at his cost.

(3) If the interval between conclusion of contract and the delivery date is more than four months, then the prices which are effective are those which are valid at the time of delivery or supply. If the purchaser is a fully qualified merchant, this also applies if, because of ordinary (slight) negligence on our part or circumstances exclusively lying in our sphere, the actual delivery can first be effected after more than four months.

§4 Delivery, period of delivery

(1) Unless otherwise agreed in writing, acceptance of the goods sold takes place at our business or warehouse in Berlin.

(2) Provided installation has been agreed by us, the requirements for installation will be made known to the purchaser in due time. The purchaser is required to arrange the necessary requirements for installation. In particular, he has to see to it that an adequate ground load­carrying capacity of 200 kg/m' is available and, should doubt exist regarding this, he has to permit an examination of the ground load-bearing capacity which is to be undertaken before delivery.

The costs arising in conjunction with the installation of the goods, for transport and overnight accommodation of our employees, will be passed on to the purchaser without extra charges.

(3) Delivery dates and delivery deadlines which are agreed to be binding must be in writing.

Delivery periods which have been agreed can only be kept if the purchaser has complied with the obligations incumbent upon him. In the case of subsequent changes or requests for amendments on the part of the customer, the delivery period is appropriately extended.

If we do not keep to the delivery date, the purchaser must set us an appropriate additional period of time, which begins with the accession at our company. A period of at least four weeks is valid as an appropriate additional period of time. The purchaser is first entitled after expiring of this additional period of time to withdraw from the contract or insist on damages because of nonperformance. The purchaser can only insist on damages if we or our persons employed in performing an obligation have intentionally brought about the damage caused by delayed performance or as a result of gross negligence. The right to withdraw from the contract remains unaffected. A withdrawal from the complete contract because of a partial delay or partial impossibility of performance is only allowed if the already produced performance by successive installments is without interest for the purchaser.

(4) We do not have to answer for delays in delivery and performance because of Acts of God and because of events which significantly hinder or make the delivery impossible - in particular, strikes, lockouts, instructions from the authorities and other, also when these occur at our suppliers - even in the case of agreed time limits and deadlines. They entitle us to defer the delivery by the duration of the impairment plus an appropriate initial period, or to withdraw completely or in part from the contract because of the not yet fulfilled part.

If the hindrance lasts more than three months the purchaser can, following an appropriate setting of an additional period of time, withdraw from the still not fulfilled part of the contract. If the period of delivery is extended or if we are freed from ourobligations, the purchaser can derive no claims for damages.

In cases in which we are not liable for not keeping binding obligations, deadlines or dates or we are in default, the purchaser has a claim to compensation for default in the case of damages arising to the sum of Y2% for each complete week of the default, in total however up to 5% of the invoice value of the deliveries and performances affected by the default. Claims in addition to this, in particular claims for damages of any kind are excluded in so far as the purchaser does not prove that these are not typical and foreseeable damages.

(5) We are at all times entitled to make part deliveries and part performances.

§5 Passage of risk

The risk is transferred to the purchaser as soon as the consignment is handed over to the person responsible for transport or has left our warehouse for the purpose of dispatch. This is also valid when part deliveries take place or we have still taken charge of other performances, for example dispatch costs, transportation or installation. At the request of the purchaser, the consignment can be insured at his cost against theft, damage by breakage, transport, fire and water damage, as well as other insurable risks.

If dispatch is delayed or is impossible as a result of no fault of ours, the risk is transferred to the purchaser with the notification of readiness to dispatch.

§6 Guarantee

(1) We guarantee that the products delivered by us are free from manufacturing and material damage. The period of guarantee is one year.

(2) The purchaser is required to inform us immediately in writing of obvious damage, at the latest however within one week after delivery. The defective goods are to be made available for viewing in the condition in which they were at the time of establishing the defect. If we are, as a result of a large distance, not able to carry out a viewing, the purchaser must send us photographs in order to allow us to make an assessment.

In the case of businesses with fully qualified merchants, the purchaser must examine the consignment immediately for transport and other damage and immediately inform us of any damage or loss in the form of a written report giving the precise facts. The stipulations of §§377,378 HGB further remain applicable.
A contravention against the above obligations does not exclude any guarantee claims against us.

(3) If the goods are defective or guaranteed properties are missing, or they are faulty during the warranty period, we shall in accordance with our choice, whilst excluding other warranty claims of the purchaser, deliver replacements or undertake repairs. We are entitled to undertake two attempts at repair. During the repairs, the expiring of the warranty period is suspended. Moreover, the carrying out of warranty work results in no extension of the warranty for the product.
If the repair work or the delivery of replacement parts prove unsuccessful, the purchaser can, according to his choice, insist on a reduction in the payment or the cancelling of the contract.

(4) Guaranteed properties only exist if the description of the goods explicitly and in writing refers to these as guaranteed properties.

The sound-absorption values given in our brochures and catalogues for series manufactured sound insulation cabins are according to DIN procedures. For the complete sound absorption value for the sound insulation cabinets, variations of 2 db above or below are considered as conforming to the contract. The individual sound absorption values are considered as conforming to the contract when they do not deviate from the guaranteed values by more than 8 db above or below.
The sound absorption values given in the broschures or catalogues are for series manufactured sound insulation cabins are explicitly not guaranteed for sound insulation cabins manufactured individually and varying from our standard products according to the customer's wishes.

(5) We are only liable for damage resulting from defects due the absence of guaranteed properties only in so far as the guarantee precisely pursued the aim of protecting the purchaser from the damage occurring. There is no liability for unforeseen damage.

(6) The preceding paragraphs definitively determine the guarantee for our products and exclude other warranty claims of any kind.

§7 Retention of ownership

(1) Up until the fulfilment of all claims deriving from whatever legal basis which the purchaser is entitled to now or in the future, the following securities are guaranteed and which we surrender according to our choice provided the claim does not exceed 20%.

The goods remain our property. Processing or alterations invariably take place for us as the manufacturer, however, without any obligation for us. In the event of the cancellation of our (joint) ownership as a result of link-up, it is already now agreed that the (joint) ownership of the purchaser on the unitary objects prorata value (on the basis of the invoice value) will be passed over to us. The purchaser keeps our (joint) ownership free of charge and in a diligent manner. Goods for which we are entitled to (joint) ownership are referred to in the following as conditional commodities. As long as the purchaser is not in default in terms of payment to us, he is entitled to process and sell the conditional commodities in proper business. Pledges or trust receipts are, however, invariably inadmissable. Claims arising from resale or another legal ground (for example, claims against insurances or from unallowed business) in relation to conditional commodities are made over to us by the purchaser now already, for reasons of security, in the full amount. We authorise him, until this is revoked, to collect the claims occurring for our invoice in his own name. A revoking may only take place if the purchaser does not carry out his contractual agreements. On our request, the purchaser has to disclose the transfer and provide us with the necessary information and documents. The purchaser passes on our reservation of ownership to his customers in such a way that he reserves the ownership independently in accordance with § 455 BGB until full payment has been made.

In the event of intervention by third parties - in particular a bailiff - regarding the conditional commodities, the purchaser is obliged to point out that it is our property and to inform us immediately. Costs and damages arising from such intervention are to be carried by the purchaser. The purchaser is obliged to insure at his cost the conditional commodities against theft, destruction, damage and other impairments. The claims deriving from it are already made over to us now in their entirety for reasons of security.

In the event that the purchaser acts in a manner in contravention of the contract - in particular in the event of default in payment - we are entitled to take back the conditional commodities at the expense of the purchaser or, if appropriate, to insist on transfer of the right to recover possession against others.

The taking back of as well as the seizure of the conditional commmodities by us is not, provided installment contractual law does not stipulate something else, a withdrawal from the contract.

(4) Provided that we are entitled according to the preceding provisions to take back the conditional commodities, the purchaser concedes to us and our representatives the irrevocable right to enter his business premises during normal business hours, if necessary with vehicles, for the purpose of collection of the conditional commodities.

§ 8 Payment

(1) A third of the purchase price is payable on conclusion of the contract by our conformation of the order. The balance is payable within 30 days from the date of the invoice without deductions. In the case of receipt of payment within ten days from the date of the invoice, we allow a 2% cash discount. Payments are considered as effected with a credit entry on our account.

(2) We explicitly reserve the right to refuse cheques or bills. Payment takes place always only on account of payment. Discount charges and bill charges are charged to the purchaser and are due immediately. We are entitled, despite otherwise read stipulations of the purchaser first of all to deduct payments from his old debts and will inform the purchaser about the type of resulting offsetting. If costs or interest already exist, we are entitled to first of all deduct the costs, then the interest and finally the principal claim.

(3) The purchaser is only entitled to offset if the counterclaim is undisputed or established as legally effective. A retention of payments by the purchaser because of counterclaims from other contractual relationships is excluded. In any case, the payments can only be retained to an amount which the purchaser is approximately entitled to and whose counterclaim has been lodged.

§9 Default in payment

(1) If the purchaser does not comply with his obligation regarding payment, in particular a cheque is not redeemed or he ceases to make payments, or an agreement in writing regarding the payment date is exceeded by more than 14 days and he allows the statutory extension of time to elapse, we are entitled to make the total remaining debt due, even if the bills or cheques have been taken on deposit. The same applies if other circumstances are known which place in question the credit worthiness of the purchaser. In this case, we are additionally entitled in relation to other contracts with the purchaser to insist on prepayments or security performances, as well as following an appropriate extension period, to withdraw from this contract or to insist on damages because of nonfulfilment.

(2) If the purchaser is in default, we are entitled to charge interest to an amount calculated by our lenders of the interest rate for open accounts or 4% above the current interest rate of the German Central Bank. Interest is due immediately.

§10 Changes to construction

We retain the right to make technical or design variations in relation to descriptions and information given in broschures, offers and written documents, as well as changes in performance, construction, development and material as a result of technical advances, without the purchaser deriving any rights from this, in so far as they are not of a fundamental kind, insignificantly modify the contractual intent and the interest of the purchaser is not unreasonably prejudiced.

§11 Limitation of liability

We are liable regardless of from which legal ground, only for intent and gross negligence. This limitation of liability is applies also for our persons employed in performing an obligation and vicarious agents. Moreover, we are also liable in the case of the non-observance of substantial contractual obligations for ordinary negligence. The liability for positive violation of contractual duties, faults on conclusion of contract and from unlawful acts is additionally limited to the reimbursement of typical, foreseeable damage.

§12 Default in acceptance by the purchaser

If the purchaser does not accept the goods, we are entitled following the setting and unavailing expiring of an extension of time of at least 10 days to withdraw from the contract or to insist on damages because of nonperformance. In the latter case, 15% of the purchase price can be demanded as compensation provided, that demonstrably not only minor damage has occurred. The lodging of a claim for an actually occurring greater damage is explicitly reserved.

Instead of the assertion of the above-mentioned rights, we are also entitled following the setting and unavailing expiring of an extension of time to use the goods in another way as we see fit and to then supply the purchaser after an extended appropriate time limit.

If the dispatch is delayed by more than a month at the request of the purchaser, following the notification of readiness to dispatch, we are entitled to charge to the account of the purchaser costs arising from storage, minimally however 0.5% of the invoice amount for each month commenced.

§13 Type of contract

The contracts concluded between us and the purchaser are, unless otherwise not explicitly indicated, purchase contracts. The mutual obligations derive exclusively from the above- mentioned provisions, which are not affected by financing agreements of the purchaser with third parties. Inparticular, the purchaser's payment obligations remain, even when we have arranged the financing contracts.

§14 Non-assignment

The purchaser is not entitled to transfer his rights and obligations from contracts with us to third parties without our agreement.

§15 Applicable law, place of jurisdiction, partial invalidity

(1) For these general terms and conditions and the complete legal relationship between the seller and purchaser, the law of the Federal Republic of Germany is valid, with the exception of the uniform purchasing law (EKG) and the uniform conclusion of sale law (EKAG).

(2) Provided that the purchaser is a fully qualified merchant under the terms of German Commercial Code or a legal person under public law, Berlin is exclusively the place of jurisdiction for all contested matters deriving directly or indirectly from the contractual relationship.

(3) Should a term of these general terms and conditions or a term within the context of other agreements be or will be invalid, the validity of all other terms or agreements is not affected. These are then so to be interpreted that the intended commercial purpose in a legally permisssible manner will be achieved as precisely as possible.