Allgemeine Geschäftsbedingungen

Art. 1 Application of the Terms and Conditions
The deliveries, performances and offers of Messrs. da music Deutsche Austrophon GmbH, hereinafter referred to as da music, are based exclusively on these Terms and Conditions of Business. They thus also apply to all future business relations, even if not expressly stipulated again. The orderer waives enforcement of its own purchasing conditions, which do not become part of the contract even as a result of our silence or our delivery. These Terms and Conditions are deemed to be accepted upon placing an order with da music, where appropriate upon signing of the delivery note presented by da music, its representative or the carrier commissioned by it, and at the latest upon acceptance of the goods or service. Counter-confirmations of the orderer, referring to its business, purchasing or contract terms, are herewith contradicted.


Art. 2 Offer and Contract Conclusion
1. The offers of da music are without obligation and not binding. Specifically elaborated offers are binding for 30 days. To be legally valid, orders require written confirmation by da music. Fulfilment of the order replaces written confirmation.

2. The information and images contained on the Internet, in brochures, catalogues, advertisements, promotions, price lists or the documentation belonging to the offer are not binding, unless expressly referred to as binding in the order confirmation.


Art. 3 Prices, Payment
1. The prices stated in the order confirmation from da music are authoritative, plus the respective statutory value-added tax, which is expressly indicated. Additional deliveries and services are charged separately.

2. Unless otherwise agreed, the prices are ex company headquarters in Diepholz.

3. The purchase money claims become due immediately, regardless of the time allowed for payment or of the term of accepted and credited bills, if the payment terms are not observed or if circumstances become known which, according to the best commercial judgement of Messrs. da music, are likely to impair the creditworthiness of the orderer.

4. In the event of default in payment on the part of the orderer, Messrs. da music are entitled to demand delivery only against cash in advance, or some other form of security for the consideration, or to deliver cash on delivery.

5. All payments are to be made directly to Messrs. da music. Representatives/third parties are not entitled to accept money or other means of payment without written authority from Messrs. da music. Payment is not deemed to have been made until da music can dispose of the amount. Bills are only accepted by virtue of a special agreement, bills and cheques only with a view to payment and only free of charges for da music. da music is not liable for punctual presentation of bills and protesting.

6. The orderer is only entitled to rights of setoff if its counterclaims are conclusively recognised, undisputed or acknowledged by da music.

7. For contracts with an agreed delivery period of more than four months, da music reserves the right to increase the prices in accordance with higher costs occurring as a result of collective wage agreements, rising material prices or exchange rates.

8. The orderer has a right of cancellation if the increase amounts to more than 5% of the agreed price.

9. In the event of non-fulfilment of the contract by the orderer and of withdrawal from the contract of sale by da music pursuant to Section 455 of the German Civil Code (BGB - Reservation of title), da music is entitled to demand 30% of the claim amount, plus expenses for packaging, freight and return freight costs, as compensation for damages. The parties to the contract are free to furnish proof of lower or higher damages in a given instance.

10. In the event of late payment, da music is entitled to charge interest on arrears at a rate 3% above the respective discount rate of the Deutsche Bundesbank, but at least 7% p.a. The parties to the contract are free to furnish proof of higher or lower damages caused by the delay.


Art. 4 Packaging / Shipping Costs
1. Insofar as they are not part of the standard product packaging, packagings are charged at a reasonable price and, insofar as permitted by law, not taken back.

2. If the order has a net goods value of more than €110.00, da music delivers free to the receiving address of the orderer in the Federal Republic of Germany (free to the station of destination for rail delivery). For orders with a net goods value of less than €110.00, the actual shipping and packaging costs are invoiced, but not less than €5.00. For cost reasons, orders with a net goods value of less than €30.00 are not fulfilled. We reserve the right to subsequently charge shipping and packaging costs in the event of returns. The transport route and means of transport are determined by da music, and da music is not liable for the cheapest form of shipment. If the orderer requests a particular shipping method, da music charges the extra costs. Special requests regarding the shipping method must be issued anew for each order.


Art. 5 Time of Delivery and Performance (Art. 6 applies to merchants)
1. da music endeavours to meet indicated deadlines. If a contractually stipulated down payment by the orderer is not received, the delivery period is interrupted for the corresponding period of time. If da music is in default, the orderer can, in accordance with the following provisions, withdraw from the contract or demand damages for non-performance pursuant to Art. 7 No. 8 of these Terms and Conditions.

2. The duration of the period of grace to be granted by the orderer by law is fixed at six weeks, starting upon receipt of notification by da music.

3. da music is entitled to render partial performances and make partial deliveries at any time.


Art. 6 Time of Delivery and Performance in Business with Merchants
1. The deadlines and periods indicated by da music are not binding, unless expressly agreed otherwise in writing.

2. Even in the case of bindingly stipulated periods and deadlines, da music cannot be held responsible for delays in delivery and performance resulting from force majeure and from events that make delivery significantly more difficult or impossible for da music - including subsequent material procurement problems, breakdowns, strikes, lock-outs, staff shortages, lack of means of transport, official orders, etc., also if they occur at da music's suppliers or their sub-suppliers. They entitle da music to defer delivery or performance by the duration of the hindrance, plus a reasonable start-up period, or to withdraw wholly or partly from the contract in respect of the part not yet fulfilled.

3. If the hindrance lasts longer than three months, the orderer is entitled, after granting a reasonable period of grace, to withdraw from the contract in respect of the part not yet fulfilled.

4. If da music is responsible for non-compliance with bindingly promised periods and deadlines, or is in delay, the orderer has a right to claim compensation for damages resulting from the delay at a rate of 0.5% of the invoice value of the deliveries and performances affected by the delay for each full week of the delay, but not more than 5% of the invoice value in total. More extensive claims are ruled out, unless the delay is based on at least gross negligence on the part of da music.

5. In all other respects, Art. 7 Para. 8 of these Terms and Conditions applies accordingly as regards liability.


Art. 7 Warranty and Liability
1. If the article supplied is defective, or if it lacks warranted qualities, or if it becomes faulty within the warranty period as a result of manufacturing or material defects, da music supplies a replacement or rectifies the fault at its own discretion, other warranty claims of the orderer being ruled out.

2. The warranty period is 2 years, starting on the date of delivery.

3. Deliveries must be checked for regularity upon receipt. Complaints concerning perceptible defects, as well as short or incorrect deliveries, can only be made within eight days of receipt of the goods, in writing and indicating the delivery note number. The orderer must examine the deliveries for transport damage without delay on arrival and immediately notify da music of any damage or loss by means of a report of the facts by the carrier or a written attestation, which must be signed by two witnesses and the orderer. The defective articles supplied must be kept available for inspection by da music in the state in which they are found at the time of ascertaining the defect. Any breach of the above obligations precludes any warranty claims whatsoever on da music.

4. The entire warranty lapses if the articles supplied are altered or unsuitable materials are used for their care.

5. Multiple rectification of faults is permissible. If rectification fails after a reasonable period, the orderer can, at its own discretion, demand reduction of the remuneration or cancellation of the contract, in which context da music issues the orderer with a credit, insofar as legally admissible.

6. Liability for normal wear and tear is ruled out. Any warranty whatsoever is excluded if goods in stock are sold at a special price.

7. da music is available to the orderer to provide information and advice to the best of its knowledge. However, da music is only liable for this, in accordance with the following paragraph, if special remuneration was agreed on for such information and advice.

8. Further claims of the orderer, particularly for compensation for damage not occurring on the article supplied itself, compensation claims for impossibility of performance, non-performance, positive breach of contract, culpa in contrahendo and tort, as well as on any other legal grounds whatsoever, are ruled out, both against da music and against its employees or vicarious agents, insofar as the damage was not caused wilfully or by gross negligence. This does not apply to compensation claims arising from warranties of quality that are intended to protect the contract partner against the risk of consequential damages, and furthermore not in cases in which, according to the German Products Liability Act, liability for personal injury and property damage to privately used objects exists in the event of faults in the article supplied. Should complete exclusion of liability exceptionally not be admissible in individual cases, liability is limited to 30% of the foreseeable damage.


Art. 8 Passage of Risk, Acceptance
The risk passes to the orderer as soon as the shipment has been handed over to the person performing transport, or has left the company grounds of da music or its supply depot for the purpose of shipping. This also applies if delivery is performed by company-owned vehicles. If shipping becomes impossible through no fault of da music, or if it is delayed at the request of the orderer, or if the orderer fails to accept the goods, the risk passes to the orderer at the time of notification of readiness for shipping.


Art. 9 Copyright
Payment of the purchase price does not grant the orderer either a simple or an exclusive right of use within the meaning of the German Copyright Act in relation to any copyrights or related protective rights. The video, audio and/or data media and their packaging are supplied only for the purpose of sale to domestic ultimate consumers. In particular, any and all acts of reproduction, be it physical or non-physical, for commercial and non-commercial purposes, as well as the lending or hiring out of our video, audio and/or data media, or transactions ultimately comparable thereto from the economic point of view (evasive transactions), are forbidden, unless otherwise agreed in writing. Attention is drawn to the fact that copyrights and/or related protective rights of third parties may be violated in the event of the products delivered being exported. No liability is accepted for any claims raised in this connection. Exports to countries outside the EU are not permitted without the written consent of da music. Any alteration of the goods delivered is impermissible, particularly the attachment of labels and marks, as well as indications of origin, and also the application of special stamps that could create the impression that the goods involved are special products.


Art. 10 Reservation of Title
1. Until discharge of all claims (including all current-account claims) against the contract partner to which da music is entitled, now or in future and on any legal grounds, da music is granted the following securities, which it will release at its own discretion upon request, insofar as their value exceeds the claim persistently and by more than 20%.

2. The goods remain the property of da music. The orderer keeps the goods (reserved goods) in safe custody free of charge. The orderer is entitled to sell the goods in the ordinary course of business, provided that it is not in default. Pledging or transfer of ownership by way of security is not permissible. By way of security, the orderer even now assigns the claims arising from resale or on any other legal grounds (insurance, tort) in connection with the reserved goods (including all current-account claims) to da music in their entirety. The latter revocably authorises the orderer to collect the claims assigned to da music on the account and in the name of the orderer. This does not affect the authority of da music to collect the claims itself.

3. In the event of seizure of the reserved goods by third parties, the orderer will draw attention to the ownership of da music, notify da music without delay, and assist da music at its own expense and in every way in intervening. If so demanded by da music, the orderer must, as soon as it is in default, notify its debtors of the assignment and give da music the necessary information and documents.

4. If the orderer resells goods supplied subject to reservation of title, it must uphold the reservation of title vis-à-vis its customers until they have paid the purchase price in full.

5. In the event of contract-breaching conduct of the orderer - particularly default in payment - da music is entitled to take back the reserved goods or, where appropriate, to demand assignment of the claims of the orderer for surrender against third parties. Taking back or attachment of the reserved goods by da music does not constitute withdrawal from the contract, insofar as the German Act on Instalment Sales does not apply.


Art. 11 Returns, Exchange
1. Goods may only be returned if da music expressly so requests in warranty cases, or if da music has erroneously sent the orderer goods other than those ordered, or if da music has previously given its written agreement to return or exchange by way of exception.

2. For goods returned on the basis of return or exchange agreements, da music issues a credit for offsetting only.

3. da music does not issue credits for goods returned without justification.


§ 12 Right of Cancellation Pursuant to the German Distance Selling Act for Consumers in the Federal Republic of Germany and the EU
1. In the case of sealed goods (audio recordings, video recordings, software for data carriers of all kinds), the following right of cancellation does not apply if a sealed pack has been opened or damaged (unsealing).

2. Procured articles that were obtained for the consumer according to specifications, are excluded from the right of cancellation.

3. The consumer is no longer bound by the purchase order if he cancels it within a period of 2 weeks of receiving the goods. The cancellation need not indicate reasons, and must be expressed in writing (for consumers in the Federal Republic of Germany, also by submission on a durable data carrier) or by returning the goods. Timely sending to da music Deutsche Austrophon GmbH & Co. KG, Kruppstrasse 7, D-49356 Diepholz, Germany, suffices for compliance with the deadline.

4. In the event of cancellation, we will refund any payments made once the goods have been returned. The consumer is obliged to send back the goods at our risk, unless this was already done together with the letter of cancellation.

5. The cost of returning the goods is borne by the consumer - in the event of shipment within the Federal Republic of Germany, however, only if the value of the goods does not exceed an amount of €40.00, or if, in the event of a higher price of the goods, the consumer has not yet made the counterperformance or a part payment by the time of cancellation, unless the goods delivered are not the ordered goods.

6. In the event of return of damaged or used goods, da music is entitled to claim for compensation, also against consumers outside the Federal Republic of Germany/EU (Section 361a II BGB - German Civil Code).

7. The proper postage must be paid on return deliveries. We refuse to accept shipments sent postage unpaid. For courier shipments and other irregular shipping methods, we bear no costs exceeding the cost of shipment by post. Packs or sets can only be returned in complete form.


Art. 13 Applicable Law, Legal Venue, Partial Nullity
1. These Terms and Conditions of Business, and the entire legal relationship between da music and the orderer, is subject to the law of the Federal Republic of Germany, EU sales law (Consumer Sales Directive) being excluded. The German language is the negotiating and contracting language.

2. Insofar as permitted by law, Diepholz is the sole legal venue for all disputes arising directly or indirectly from the contractual relationship.

3. The place of fulfilment is Diepholz.

4. Should any provision in these Terms and Conditions of Business, or any provision in the framework of other agreements, be or become invalid, this does not affect the validity of all other provisions or agreements.

Diepholz, 13.03.2007


DA MUSIC
Deutsche Austrophon Schallplatten Vertriebs GmbH & Co. KG
Kruppstrasse 7 - D-49356 Diepholz, Germany
Tel.: 49 (0)5441 9869-0 / Fax: 49 (0)5441 9869-69
Internet: http://www.da-music.de
E-mail: info@da-music.de

Walsrode Local Court, Commercial Register No. HRA 100 693
VAT Registration No. DE 811 180 586
Tax No.: 45/200/00628

Personally liable partner:
Order Verwaltungs-GmbH * Registered Offices: Diepholz
Walsrode Local Court, Commercial Register No. HRB 101 171