General Terms and Conditions of Business of Groove Attack GmbH
January 2006
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1. Scope of application
Save as otherwise provided by individual agreement, the Terms and Conditions set out hereunder apply to any and all – including future – sales, deliveries and other services executed by us. Deviating general terms and conditions of business of customer only apply if they have been confirmed by us in writing.
2. Offer/Order
2.1 Our offers are not binding save as confirmed by us. The performance of an order is, in particular, deemed to be such confirmation. We are not obliged to deliver goods which are no longer on stock at our warehouse even if these goods are still contained in our supply lists.
2.2 Any orders of customer are binding and customer is obliged to accept delivery and payment of the goods. Customer is entitled to rescind the contract only in the event that Customer has demanded in writing, six weeks after the order has been placed at the earliest, delivery of the goods within a period of another two weeks after receipt of the demand and we have failed to deliver the goods in time. In the event an article is deleted from the catalogue or prices are increased, the parties are entitled to rescind the contract. The right to rescind must be exercised in writing.
3. Delivery/Dates of delivery
3.1 Unless fixed dates of delivery have been explicitly agreed in writing, the dates of delivery are not binding. However, customer may demand in writing six weeks after the order has been placed to effect delivery within a period of another two weeks after receipt of the demand. If we do not deliver within such period of two weeks, customer is entitled to rescind the contract. Otherwise, customer may neither claim damages for late delivery nor rescind the contract for non-delivery.
3.2 We are entitled to partial deliveries. Any partial delivery may be charged by separate invoice. In the event that parts of the contract cannot be performed for reasons which are not attributable to us, we are also entitled to partial deliveries and customer is obliged to pay the corresponding part of the purchase price. Customer is not entitled to rescind the whole contract.
3.3 In the event customer is in default with the payment of any former delivery, we are entitled to withhold any further deliveries to customer without being liable for damages.
3.4 Delivery is subject to a minimum order of 150.00 euros.
4. Shipment/Passing of risk/Acceptance
4.1 We are free to choose the means of transport (packaging) as well as the way of dispatch unless it has been agreed that customer will pick up the goods at our warehouse. The costs of transport including cash-against-delivery fees, if any, are borne by customer.
4.2 The risk of accidental loss or deterioration of the goods passes to customer as soon as the goods have been handed over to the person executing the transport or as soon as they have left our warehouse for the purpose of transportation. Customer is responsible for adequate insurance of the goods.
4.3 Customer has to ensure that, during the usual business hours, a person is available for accepting the goods. The failure to accept the goods does not release customer from his obligation to pay the purchase price.
5. Prices, fees, other costs
5.1 Our prices are net prices valid at the time of delivery, plus statutory VAT.
5.2 For covering packaging costs, fuel surcharges and tolls, we charge an additional handling fee for each sold and invoiced article amounting to 2 % of the net price; this fee, plus statutory VAT, is set out in the respective invoice. Any costs caused by customer´s demand for special packaging or a particular way of shipment are charged additionally and separately.
5.3 In the event that customer is in default with a payment, we are entitled to charge – in addition to the statutory default interest – a reminder fee amounting to 5.00 euros for each written reminder. This applies without prejudice to any further damages caused by default. In the event that direct debiting or credit card charging fails or a cheque cannot be cashed at the due date for reasons which are attributable to customer, we are entitled to charge a handling fee of 15.00 euros for compensating the costs incurred by us.
5.4 In the event that delivery of the goods fails or repeated attempts to deliver the goods are necessary or if customer has not informed us about his new delivery address, we are entitled to charge to customer a handling fee of 15.00 euros. Any claim for further damages remain unaffected.
6. Payments / Assignment
6.1 Invoice amounts are due immediately after receipt of the invoice and are payable without deduction. Customer is entitled to set-off or retention only if the asserted counter-claims are established by final non-appealable court decision or accepted by us in writing. However, in any such case, the amount exceeding the counter-claim of customer is due immediately.
6.2 In the event that other dates for payment are agreed, payment is deemed to be effected as soon as we can dispose of the money; in the case that payment is made by cheque as soon as our account is credited with the amount or, respectively, five working days after receipt of the cheque at the latest. Customer bears his bank charges. Any agreed payment dates apply to invoices as well as to credits.
6.3 In the event that the deduction of a discount is agreed, such discount applies to invoices as well as to credits. Customer is not permitted to deduct a discount if he is in default with other payments.
6.4 In the event that customer is in default with a payment for more than four weeks, we are entitled to accelerate maturity and demand immediate payment of any invoice amounts which, actually, are not yet due.
6.5 Customer´s payments are, in any case, credited against the oldest outstanding amount, regardless whether the latter refers to other costs, interest or principal claim.
6.6 Any assignment of customer´s claims against us is subject to our explicit written approval.
7. Complaints/Complaints for defects of goods/Warranty
7.1 Complaints as to the content of an invoice have to be made in writing 14 days after receipt of the invoice at the latest. Otherwise, the invoice is deemed to have been accepted after expiry of this period.
7.2 Customer is obliged to immediately examine the received goods and to give written notice of any defects by specifying the defects and indicating the bill of delivery or, respectively, the invoice number within a period of 5 working days from receipt of the goods or, respectively, in the case of hidden defects, immediately after detection of the defect or, respectively, one year after receipt of the goods at the latest. In the case that customer does not receive the goods, written notice hereof has to be given within a period of 5 working days from receipt of the invoice. If the complaint for defect is not filed in due time and due form, our performance is deemed to be duly effected by us and any warranty claims are excluded.
7.3 Any goods which customer has complained about have to be returned to us in original condition (as good as new, without any adhesive labels affixed by customer) within 5 working days after such return has been demanded by us. If customer does not duly comply with this demand, we are no longer under warranty obligation.
7.4 In the case that customer´s complaint is legitimate, we are, first of all, entitled to remedy the defect or deliver a substitute. If the remedy or delivery of a substitute fails in part or as a whole, customer is entitled to reduce the purchase price or demand rescission of the contract.
7.5 Any claims for damages on grounds of infringement of our preliminary contractual or contractual or statutory obligations are excluded save in the case that we, our employees, other persons employed by us in the performance of our obligation or our vicarious agents have acted intentionally or in a grossly negligent way.
7.6 For the rest, our warranty liability is governed by the statutory provisions. Any specific qualities of goods are deemed to have been guaranteed by us only in the case that such guarantee has been specifically confirmed by us in writing. Our liability is excluded in the case that customer resells the goods to third parties outside the country in which customer has his company seat.
8. Returns/Credits
8.1 Returns of goods (returns) are subject to our written approval.
8.2 Returns are excluded in the case of wholesale or import articles, vinyl sound carriers, special sales, cancelled articles in regard of which the period for return fixed in the cancellation list has expired, as well as in the case of articles which have not been obtained from us, free goods, goods which have been delivered 18 months before the customer´s return request and, generally, any articles which have been marked as non-returnable in our supply lists.
8.3 The returns must be in original condition allowing them to be (re)sold, i.e. free of any defects, without any stickers, labels etc. affixed by customer; otherwise we are not obliged to credit for the returns and, in the case of a goodwill credit, we reserve the right to deduct a lump-sum amount of 1.00 euro per sound carrier.
8.4 Returns have to be sent back to our warehouse on the customer expense and risk; in particular, customer has to ensure that the returns reach our warehouse without any damage since, otherwise, we do not credit for the articles approved by us for return.
8.5 The articles approved by us for return must sent to our warehouse within a period of 4 weeks after the approval has been given; otherwise, we do not credit for the returns and our approval becomes obsolete.
8.6 If the aforesaid requirements are duly met, we will credit customer the price of the returned article valid at the time of delivery, less any granted deductions. Any credited amounts are set off against our claims. If we do not have any claims, the credited amount is paid immediately or, respectively, within the agreed period for payment by deducting the agreed discount.
8.7 Articles not approved by us for return will, at our discretion, be destroyed or returned to customer at his expense.
9. Retention of title
9.1 We retain title to the delivered goods until full payment of the purchase price including interest and other costs and fees accrued in connection with the purchase of the goods. Customer is obliged to carefully handle the goods owned by us, not to give them in pledge or transfer title to them as security and to refrain from any other disposition affecting our security. Customer is entitled to sell the goods to which we still hold title in the due course of business, but assigns to us already now any and all future claims which result from the reselling of our goods to third parties; such assignment is made to the extent that the final invoice amount including VAT is covered. We accept the assignment; the customer, however, is entitled to collect the assigned claims on his own behalf as long as he duly fulfils his obligations and the authorization to collect the claims is not revoked by us.
9.2 In the event that the goods delivered under retention of title or the claims assigned to us should be attached, customer is obliged to reveal such retention of title or assignment for security and must inform us immediately.
9.3 In the event that customer is in default with payment or ceases payments at all, we are entitled to demand return of any goods which are still in customer´s possession, and customer is obliged to communicate to us any information required for collection and to reveal the assignment. In the case that we realize the goods or successfully collect claims, this is not deemed to be a rescission of the contract but the proceeds from the realization – less any costs accrued in connection with the realization – are credited against our customer´s liabilities.
10. Online orders
Customer is granted the option to place online orders via the B2B portal on our website. For such purpose, customer is given personal access data which he may exclusively communicate to his employees, but not to third parties. We are entitled to cancel, at any time without giving reasons for this and without any specific notification by us being required, customer´s option to place online orders.
11. Place of jurisdiction / Place of performance / Applicable law
11.1 Place of performance for deliveries and payments is Cologne.
11.2 If customer is a businessman or legal entity under public law, place of jurisdiction for any and all disputes arising from the business relationship which is governed by the present General Terms and Conditions of Business is Cologne. The same applies to customers for whom the ordinary place of jurisdiction is not in Germany but who do similar commercial business abroad and to persons who have – after conclusion of the contract – transferred their domicile or habitual residence to a place outside Germany or whose domicile or habitual residence is not known at the time when the action is brought.
11.3 German law applies, excluding UN sales law.
12. Final provisions
12.1 In the event that any provision of this agreement should be invalid in whole or in part, this will not affect the validity of the remaining contractual provisions. Such provision which is invalid in whole or in part will be replaced by a valid provision which reflects the economic intent of the invalid provision as closely as possible.
12.2 The headings of the individual sections shall only ensure a better overview and are, therefore, not binding.
