General Terms and Conditions of Delivery of AudioCD
Status: 01. 07. 2023 1. scope of application
1.1 The following General Terms and Conditions of Delivery (hereinafter referred to as "Terms and Conditions of Contract") shall apply exclusively to all delivery contracts concluded between AudioCD and customers, concerning the provision of services as well as the performance of repro and glass mastering work. The contractual terms and conditions shall also apply to future business relations in these areas, even if no express reference is made to them.
1.2 Amendments or supplements as well as conflicting contractual terms and conditions of the customer or terms and conditions that deviate from these provisions shall only apply if AudioCD has expressly agreed to them in writing. If the customer does not agree with them, he must immediately notify AudioCD in writing.The following contractual conditions also apply if AudioCD executes the customer's order without reservation in the knowledge of conflicting or deviating conditions of the customer.
1.3 The contractual terms and conditions apply to private individuals, companies and other commercially active customers (hereinafter both also referred to as "customers").2 Offer and conclusion of contract
2.1 AudioCD can accept an order of the customer, which is to be qualified as an offer to conclude a sales contract, within four weeks by sending an order confirmation or by sending the ordered products within the same period.
2.2 Our offers are subject to change and non-binding, unless AudioCD has expressly designated them as binding.
3 Manufacturing or Production Material / Obligation to Cooperate
3.1 The customer provides AudioCD with all documents required for production (e.g. masters / replicas, DLTs, blanks, label films or data as well as electronic data etc.) free of charge, according to the given specifications as duplicates (copy). The customer alone is obligated to verify the content and format of the manufacturing or production documents provided to AudioCD. Documents provided shall be deemed per se to have been released for production - unless written reference is made in the customer's order to a release to be granted.
3.2 All items produced for the execution of an order (e.g. glass masters, stamper, matrices, replicas, films, proofs, printing plates, etc.) remain the property of AudioCD, even if the customer bears the costs for their production. Other sketches, drafts, sample typesetting, sample prints, samples and similar preliminary work initiated by the customer may be charged to the customer even if the order is ultimately not placed. These items also remain the property of AudioCD.
3.3 AudioCD has the right to place its company, the title or any other reference to the origin or the manufacturer of the product on the inner ring data carrier.
3.4 The commercial customer is obliged to inform AudioCD immediately in writing about any changes regarding his company name, registered office, ownership, creditworthiness.
4 Terms of delivery / delivery and performance time
4.1 Delivery dates or periods that have not been expressly agreed as binding are exclusively non-binding information. The delivery time stated by AudioCD starts with the placing of the order and the handing over of the complete manufacturing or production materials according to specification as well as - if requested by AudioCD according to clause 13.4. of these terms and conditions - with the submission of the questionnaire and the supplementary obtaining of factual and legal information.If the handed over manufacturing or production material still has to be processed first or if further agreed duties of cooperation of the customer have to be fulfilled, the delivery time will be extended accordingly. If the originally agreed delivery date is postponed by more than four weeks due to the collection of the questionnaire and the clarification of questions, the regulation in clause 13.4. sentence 3 is decisive.
4.2 The delivery owed by AudioCD takes place at AudioCD's place of business. The time of availability at AudioCD is decisive for compliance with the delivery dates and deadlines.
4.3 AudioCD is entitled to partial deliveries and/or services as far as this is reasonable for the customer. Production-related excess or short deliveries are permissible as follows:0 to 2000 pieces: +/- 10% of the ordered number of pieces2000 to 5000 pieces: +/- 5% of the ordered number of piecesfrom 5000 pieces: +/- 3% of the ordered number of piecesInvoicing is based on the actually delivered number of pieces.
4.4 AudioCD is not responsible for delays in delivery and performance due to force majeure and due to events that make delivery considerably more difficult or impossible for AudioCD not only temporarily - this includes in particular strike, lockout, official orders, machine failure, etc., even if they occur at AudioCD's suppliers or their sub-suppliers - even in the case of bindingly agreed deadlines and dates. They entitle AudioCD to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time. If the fulfillment of AudioCD's contractual obligations becomes impossible for the aforementioned reasons, AudioCD is released from its obligation to perform. If the performance of the aforementioned performance of the aforementioned contractual obligations by more than 1 month, AudioCD is entitled to withdraw from the contract. The customer must be informed immediately of such obstacles to performance. Any payments already made by the customer are to be refunded.
4.5 If AudioCD does not deliver the owed services at the agreed time, the customer has to grant AudioCD a reasonable grace period of at least 2 weeks. If the delivery is subsequently not made within the grace period, the customer may withdraw from the contract with a written declaration. An insignificant breach of duty does not entitle the customer to withdraw from the contract. If the contracting parties have agreed on a transaction for delivery by a fixed date, the period of grace to be set by the customer shall be at least 5 days, unless this is unreasonable for the customer or the contractual performance is demonstrably no longer usable for the customer.
4.6 If the customer is in default of acceptance, AudioCD is entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the customer culpably violates duties to cooperate. The rights of AudioCD remain unaffected. Upon default of acceptance, the risk of performance (e.g. risk of accidental deterioration and accidental destruction) shall pass to the customer.
5 Transfer of Risk / Shipping and Packaging
5.1 The risk of performance (e.g. damage, destruction, as well as effects of any kind of force majeure, transport barriers, and the like) shall pass to the customer as soon as the contractual goods have been handed over to the carrier or have left AudioCD's warehouse for shipment. If the shipment is delayed at the customer's request, the risk shall pass to the customer upon notification of readiness for shipment.
5.2 The shipment is made at the customer's risk - even in case of freight paid delivery. Any liability of AudioCD is excluded. The mode of shipment, the transport route as well as the suitable packaging material will be determined exclusively by AudioCD. If the customer wishes an express delivery or the conclusion of a transport insurance for the goods, any additional costs shall be borne by the customer.
5.3 AudioCD does not take back transport packaging and all other packaging in accordance with the packaging ordinance, with the exception of EURO pallets. The customer has to take care of the disposal of the packaging at his own expense.
6 Prices
6.1 AudioCD's prices do not include VAT, which is shown separately in the invoices. Shipping costs are shown separately.
6.2 The agreed prices are binding for a period of 3 months from the conclusion of the contract. AudioCD is entitled to increase its prices accordingly in the event that after the expiration of this period, before the contractual service has been rendered by AudioCD, cost increases occur for which AudioCD is not responsible, such as increases in material or labor costs or public charges or fees. Upon request of the customer, the cost increases must be proven in detail.
6.3 AudioCD is entitled to charge the customer for subsequent changes at the customer's instigation due to newly submitted production documents, including the machine downtime caused thereby. Subsequent changes also include repetitions of test prints requested by the customer due to minor deviations from the original.The customer is entitled to prove that AudioCD has incurred no or lower damages.
7.7 If the customer does not meet his payment obligations in other respects or if circumstances become known which are suitable to question the creditworthiness, all claims become due for payment immediately. Already agreed payment terms become invalid. As a consequence, AudioCD is entitled to issue a delivery stop for already existing orders.
8. rights of set-off and retention
8.1 The customer can only declare a set-off against claims of AudioCD if his claim is undisputed or legally binding.
8.2 The customer can only assert a right to refuse performance and a right of retention if AudioCD's claim for payment and the customer's counterclaim are based on the same contractual relationship.
8.3 If AudioCD still has claims against the customer, AudioCD has a right of retention to the production documents until the respective claims against the customer have been fulfilled.
9 Retention of title
9.1 The contractual products (hereinafter referred to as "goods subject to retention of title") remain the property of AudioCD until full payment of all existing and future claims arising from the sales from the business relationship with the customer.
9.2 In case of breach of contract by the customer, e.g. default of payment, AudioCD has the right to take back the reserved goods after prior setting of a reasonable deadline. If AudioCD takes back the reserved goods, this constitutes a withdrawal from the contract. If AudioCD seizes the reserved goods, this is also a withdrawal from the contract. AudioCD is entitled to utilize the reserved goods after taking them back. After deduction of a reasonable amount for the utilization costs, the utilization
the proceeds of the sale are to be set off against the amounts owed by the customer to AudioCD.
Translated with www.DeepL.com/Translator (free version)
7. terms of payment
7.1 AudioCD may, at its discretion, supply the customer exclusively by advance payment. In this case, payment for the goods must be made before the start of production. If the customer wishes delivery on open account (credit), the customer must give AudioCD the opportunity to check the credit.Prerequisite for delivery on account is a positive and complete coverage of a credit insurance (Hermes, Creditreform etc.) in the amount of the gross value of the goods.
7.2 Unless otherwise agreed, AudioCD's invoices are due after receipt of invoice and payable without deduction within 30 days. If it is uncertain when the customer received the invoice, the customer will be in default of payment at the latest 30 days after the due date and receipt of the service. AudioCD is entitled to offset payments against the customer's older debts first, despite the customer's provisions to the contrary, and will inform the customer of the type of offset made.
7.3 In case of provision of unusually large quantities, special materials or advance performances, AudioCD may demand an advance payment or a bank guarantee from the customer.
7.4 If the customer's financial situation deteriorates significantly after the conclusion of the contract or if such deterioration becomes apparent after the conclusion of the contract, e.g. if the customer stops payment or files for insolvency proceedings against the customer's assets, AudioCD may demand advance payment of the purchase price or the provision of security.
7.5 Bills of exchange and checks will only be accepted upon special written agreement. Payment shall only be deemed to have been made when AudioCD can dispose of the amount. In the case of cheques, payment shall only be deemed to have been made when the period for revoking the cheque has expired. If protests of bills of exchange and enforcement measures against the customer become known, all claims of AudioCD against the customer become due immediately.
7.6 If the customer is in default, AudioCD is entitled to demand interest in the amount of 8 percentage points above the base interest rate. This does not affect AudioCD's right to claim further damages, in particular higher interest, additional costs and reminder fees in the amount of € 10.-- for a second and € 15. -- for a third reminder. Bank costs incurred by AudioCD due to incorrect account data or unjustified rejection can be charged to the customer by AudioCD, unless the customer is not responsible for the incorrect information. The customer is entitled to prove that AudioCD has incurred no or lower damages.
7.7 If the customer does not meet his payment obligations in other respects or if circumstances become known which are suitable to question the creditworthiness, all claims become due for payment immediately. Already agreed payment terms become invalid. As a consequence, AudioCD is entitled to issue a delivery stop for already existing orders.
8. rights of set-off and retention
8.1 The customer can only declare a set-off against claims of AudioCD if his claim is undisputed or legally binding.
8.2 The customer can only assert a right to refuse performance and a right of retention if AudioCD's claim for payment and the customer's counterclaim are based on the same contractual relationship.
8.3 If AudioCD still has claims against the customer, AudioCD has a right of retention to the production documents until the respective claims against the customer have been fulfilled.
9 Retention of title
9.1 The contractual products (hereinafter referred to as "goods subject to retention of title") remain the property of AudioCD until full payment of all existing and future claims arising from the sales from the business relationship with the customer.
9.2 In case of breach of contract by the customer, e.g. default of payment, AudioCD has the right to take back the reserved goods after prior setting of a reasonable deadline. If AudioCD takes back the reserved goods, this constitutes a withdrawal from the contract. If AudioCD seizes the reserved goods, this is also a withdrawal from the contract. AudioCD is entitled to utilize the reserved goods after taking them back. After deduction of a reasonable amount for the utilization costs, the utilization the proceeds of the sale are to be set off against the amounts owed by the customer to AudioCD.
9.3 The customer shall treat the goods subject to retention of title with care and insure them at its own expense against fire, water and theft at their replacement value. He shall keep the (co-)owned goods in safe custody for AudioCD free of charge. The customer is entitled to sell and/or use the goods subject to retention of title properly in business transactions as long as he is not in default of payment. Pledging or transfer by way of security is not permitted. The customer already now assigns to AudioCD by way of security all claims arising from the resale or any other legal ground (insurance, tort) with regard to the reserved goods (including all balance claims from current account) to the full extent; AudioCD hereby accepts the assignment. AudioCD revocably authorizes the customer to collect the claims assigned to AudioCD for its account in its own name. The direct debit authorization can be revoked at any time if the customer does not properly meet his payment obligations. The customer is also not authorized to assign this claim for the purpose of debt collection by way of factoring, unless the obligation of the factor is established at the same time to effect the consideration in the amount of the claims directly to AudioCD as long as AudioCD still has claims against the customer.
9.4 Any processing or transformation of the reserved goods by the customer shall in any case be carried out for AudioCD. If the goods subject to retention of title are processed with other items not belonging to AudioCD, AudioCD shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. The same applies to the new item created by processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to AudioCD, AudioCD acquires co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the customer's item is to be regarded as the main item as a result of the mixing, it is agreed between the customer and AudioCD that the customer transfers co-ownership of this item to AudioCD on a pro rata basis; AudioCD hereby accepts the transfer. The customer shall keep the sole or co-ownership of an item created in this way for AudioCD free of charge.
9.5 In case of access of third parties to the goods subject to retention of title, in particular seizures, the customer shall point out AudioCD's existing ownership rights and notify AudioCD immediately so that AudioCD can enforce its ownership rights. Insofar as the third party is not in a position to reimburse AudioCD for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for these.
9.6 AudioCD is obligated to release the securities to which it is entitled insofar as the realizable value of the securities to which AudioCD is entitled exceeds the claims to be secured by more than 10%; in this context, AudioCD is responsible for selecting the securities to be released.
10 Defects of quality and title
10.1 If the customer has ordered the subject matter of the contract as a merchant, he is obligated to inspect the subject matter of the contract immediately upon receipt with reasonable care under the given circumstances and to notify AudioCD immediately in writing of any material defects found.
immediately in writing to AudioCD. Initially undetectable material defects must also be notified to AudioCD immediately after their discovery in compliance with the notification requirements according to sentence 1. If the customer does not comply with these obligations, the subject matter of the contract is deemed approved with regard to this material defect with the consequence that the assertion of claims for defects is excluded. This shall not apply in the event of fraudulent intent.
10.2 In the event of material defects - subject to the provisions in section 10.4 - AudioCD has the choice within the scope of subsequent performance to be rendered vis-à-vis companies whether the subsequent performance is to be effected by rectification or replacement delivery. AudioCD can make the supplementary performance dependent on the payment of at least 50% of the agreed purchase price or of a reasonable part taking into account the defect. After two failures of the supplementary performance, the customer can reduce the agreed payment or withdraw from the contract in case of a significant breach of duty and, if applicable, claim damages, provided that AudioCD is responsible for the defect.
10.3 The supplementary performance in case of defects of title is carried out by AudioCD providing a legally flawless possibility of use. AudioCD may replace the affected contractual item with an equivalent item that complies with the contractual provisions if this is acceptable to the customer.
If third parties assert property rights against the customer, AudioCD must be informed immediately in writing. If AudioCD is responsible for the infringement of rights, AudioCD will, at its own discretion and in consultation with the customer, defend or satisfy the claims. The customer may not acknowledge third party claims on his own. AudioCD is entitled to defend the claims of third parties at its own expense and indemnifies the customer from all reasonable costs and damages associated with the defense of the claim, as far as AudioCD is responsible for the infringement of rights.
10.4 The condition of the delivered optical data carriers is subject to the following restrictions:a) Insignificant color deviations in the label printing of optical data carriers (CD/DVD etc.) as well as the printed matter in comparison to the specification (proof), do not constitute a material defect. Only proofs according to the ISO-coated standard, which must be supplied for each individual product, are binding in terms of color. As printed matter is organic material (e.g. paper, cardboard, etc.), deviations in dimensions and printing may occur in comparison to the specifications.b) If the customer produces a (pre)master (i.e. data) which is described beyond the maximum radius of 57.50, the warranty of quality by AudioCD with regard to runnability is excluded,as the data carrier is described with data sets outside the specifications. c) If the ́layer-break ́ (layer jump) on a dual-layer disc (e.g. DVD-9) - i.e. the change from the lower data substrate (Layer 0) to the upper substrate (Layer 1) - is not made until the rear radii (e.g. >45.00), although this could have been done earlier for reasons of equal distribution of the data between the layers, a read error may occur (time out error). This reading error does not constitute a material defect, provided that the Layer-break was created on the customer's master or by a third party on the customer's behalf. d) A partial ́cloud or streak formation ́ during the production of optical data carriers does not constitute a material defect of the goods, since in this context it is an optical effect which has its reason in the mechanical molding of the plastic.
10.5 In case of fraudulent intent and in case of a warranty assumed by AudioCD, the statutory provisions for material defects and defects of title shall remain unaffected.
10.6 If the customer or third parties commissioned by the customer interfere with the delivered products without AudioCD's written consent, AudioCD shall remedy the defect if the customer proves that the interference is not the cause of the material defect.
10.7 If it turns out that a defect reported by the customer does not actually exist, AudioCD is entitled to charge the customer for the expenses incurred with the analysis and other processing, provided that the customer is guilty of intent or gross negligence when reporting this defect.
11 Liability
11.1 AudioCD provides compensation for damages or reimbursement of futile expenses, regardless of the legal reason (e.g. breach of duty, tort), to the following extent:
a) in case of intent also of its legal representatives and vicarious agents to the full amount;
b) in case of gross negligence also of its legal representatives and vicarious agents to the amount of the typical and foreseeable damage which should have been prevented by the duty of care;
c) for slight negligence also of its legal representatives and vicarious agents insofar as an obligation is violated, compliance with which is of particular importance for achieving the purpose of the contract (essential contractual obligation). Liability shall be limited for each individual case of damage to the contractual remuneration or, at most, to the damage typical for the contract and foreseeable at the time of conclusion of the contract. Otherwise, liability for damage caused by slight negligence and for loss of profit, additional personnel costs for the customer, loss of use, additional trips, return actions and/or loss of sales shall be excluded.
11.2 AudioCD is liable for damages caused by delay in case of slight negligence up to 10 (ten) % of the contractual remuneration.
11.3 The liability for the absence of an assumed guarantee, due to fraudulent intent, according to the product liability law and for damages to life, body or health remains unaffected.
12. limitation period
12.1 The limitation period for contracts with companies shall be one year from delivery of the goods for claims for rectification of defects due to material defects or defects of title and any claims for damages arising therefrom. If the defect of title consists of a right in rem of a third party on the basis of which the subject matter of the contract can be claimed, the statutory limitation periods shall apply. 12.2.
12.2 In the case of other claims of the customer arising from the contract as well as from a debt relationship, a limitation period of one year from the start of the statutory limitation period shall apply. The
12.3 In the event of intentional or grossly negligent acts, the statutory limitation periods shall apply.
13. granting of rights / rights of third parties / release from liability
13.1 The customer grants AudioCD all necessary rights of use to the documents for the fulfillment of the contractually owed services, in particular for the reproduction, distribution, making available to the public and editing or modification of the documents on the contractual data carriers and the manufacturing and production media. The customer warrants that he is the owner of the rights required for the intended use of the documents provided to AudioCD in accordance with Section 3.1 of these contractual terms and that the persons depicted on the printed documents agree to the intended use and that this does not constitute an infringement of the right to one's own image. Furthermore, the customer warrants that the rights granted to AudioCD for the production of the optical data carriers have not already been fully transferred to third parties or are encumbered with third party rights, that third parties have not been commissioned with their exclusive exercise and that, at the time of conclusion of the contract, there are no other obligations related to third party rights that could impede or prevent the granting of rights.
13.2 The customer is liable for ensuring that the documents provided to AudioCD do not contain any racist, discriminatory, pornographic content, content that endangers the protection of minors, politically extreme or otherwise unlawful content or content that violates official regulations or requirements.
13.3 AudioCD is not obliged to check whether the documents meet the requirements according to clauses 13.1. and 13.2. and/or are incomplete or defective. However, AudioCD is entitled to refuse the fulfillment of the contract until clarification in case of doubts about the legality of the documents. If the documents provided by the customer are obviously incomplete or defective, AudioCD has to point this out to the customer. In case of urgent suspicion of a legal or statutory violation by manufacturing or production documents provided to AudioCD by the customer, AudioCD is entitled to a contractual right of withdrawal.
13.4 The customer undertakes to complete the questionnaire handed out by AudioCD regarding intellectual and industrial property rights as well as competition law issues. AudioCD is not obligated to execute the order until this questionnaire has been sent to us completely filled out, all listed questions have been answered and any necessary information has been obtained at the customer's expense (e.g. inquiries with property right holders, with collecting societies and obtaining legal advice). If the originally agreed delivery date is postponed by more than four weeks as a result, both parties shall be entitled to withdraw from the contract. Even in the event of withdrawal, the customer shall bear the costs required for the investigations and obtaining of legal advice. Further claims for damages are excluded on both sides, unless they are based on a grossly negligent or intentional breach of contract.
13.5 Customer shall indemnify AudioCD upon first request against all claims of third parties due to possible infringement of exclusive rights or rights of use (in particular with regard to technical property rights and property right positions, design patents, trademarks, marks, copyrights, personal rights such as the right to one's own image and other rights) resulting from the transfer/use of the documents delivered under this contract and used in accordance with the provisions of the contract.The parties shall notify each other in writing without delay if claims are asserted against them. In addition, the customer undertakes to reimburse AudioCD for any costs incurred due to a possible infringement of rights. This also includes the costs of legal advice and legal prosecution. The aforementioned claims exist independently of any claim for monetary damages. The customer is not liable for an infringement of third party intellectual property rights by AudioCD, as far as this infringement results from a transgression of the rights of use granted according to this contract.
14 Archiving of the documents provided
14.1 AudioCD archives the documents and items listed under 3.1. and 3.2. - with the exception of printed matter - for a period of 15 months from delivery for possible follow-up orders. After expiry of this period, the documents are destroyed unless the customer requests a return or further archiving. Further archiving is subject to a charge.
14.2 If the documents and objects 14.1. are to be insured for the duration of archiving, the customer must arrange for this himself or notify AudioCD in writing. Our liability for damage to or loss of the documents and items during the free fifteen-month archiving period is limited to gross negligence and intentional acts as well as the material value.
15 Applicable law / place of jurisdiction / assignment / partial invalidity
15.1 These contractual conditions and all legal relations between AudioCD and the customer are governed by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods.
15.2 Insofar as the customer is a merchant, a legal entity under public law or a special fund under public law, the district or regional court responsible for the company's registered office in Graz shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. AudioCD is also entitled to assert its own claims at the customer's place of jurisdiction. In all other respects, the statutory provisions on jurisdiction apply.
15.3 Claims arising from contracts concluded with AudioCD may only be assigned by the customer with the prior written consent of AudioCD.15.4 Should individual provisions of these contractual terms and conditions be or become invalid in whole or in part, or should there be a gap in these contractual terms and conditions, this shall not affect the validity of the remaining provisions.