GENERAL TERMS AND CONDITIONS OF MÜLLERMUSIC VERANSTALTUNGSTECHNIK GMBH & CO. KG
The General Terms and Conditions of müllermusic Veranstaltungstechnik GmbH & Co. KG (müllermusic) apply exclusively; conflicting conditions or such which deviate from these Terms and Conditions will not be accepted except where müllermusic has expressly acknowledged their applicability in writing. The present Terms and Conditions apply equally where müllermusic has unconditionally implemented the underlying contract in full despite having knowledge of conflicting conditions or such which deviate from the present Terms and Conditions. The present Terms and Conditions only apply to Unternehmer (entrepreneurs) within the meaning of Section 14 BGB (Bürgerliches Gesetzbuch – German Civil Code), legal entities under public law and special funds governed by public law. They also apply to all future business relationships, even where they have not been agreed upon again explicitly.
Offers of müllermusic are – provided that nothing to the contrary has been agreed – non-binding. Where acceptance periods have been prescribed to the client in offer documents, respective offers become invalid upon the expiry of said acceptance periods without the requirement of müllermusic having to serve a separate notice. Notices of acceptance which are being served late represent fresh offers of the client. Orders as well as any additions and amendments to orders require text form (Section 126 b BGB – does not require signature) in order to be valid.
In the case of a failure to place an order, any costs that arise due to preliminary inspections which have been carried out with the consent of the client shall be borne by the client. The costs calculation shall be based on the expenditures actually incurred, taking into account the prices applicable at the moment in time of the scheduling of the preliminary inspection (the price list will be provided upon request).
Deliveries will be made ex stock from Cologne. Upon the request and at the expense of the client, the delivery shall be sent to another place of destination. Müllermusic is entitled to determine the shipping modalities (shipping company, packaging, delivery method) in its free discretion.
Delivery times and rental periods will be agreed individually or, as the case may be, will be specified by müllermusic upon the acceptance of an order. Where compliance with agreed delivery times or rental periods becomes impossible for reasons for which müllermusic is responsible or where müllermusic is in default, the client shall have recourse to his statutory rights. A default, however, requires the prior service of a reminder in writing by the client, specifying a grace period. Any liability for claims for damages on the part of müllermusic is subject to the restrictions set out in Section 7.
Where nothing to the contrary has been agreed individually, the current prices of müllermusic apply (the price list will be provided upon request). All prices are net prices ex stock Cologne exclusive of packaging, which will be invoiced separately, and exclusive of the statutory VAT. Extra services or additional services requested by the client, such as a modification or upgrade of the equipment, will be invoiced separately in accordance with the current price list of müllermusic (the price list will be provided upon request). As regards possible further costs / charges that may arise in connection with the chosen method of payment, reference is made to Section 5.1 below.
5. Terms of Payment / Retention of Title and Reporting Requirements / Cancellation Fees
5.1 Payment term and default following rendering of performance
Invoices become due for payment within 10 days following the service of the invoice without deductions at the latest. Müllermusic is entitled to demand advance payments from new clients as well as in cases of particular advance performances (on the part of müllermusic). Payments effected by cheque or by bills of exchange become valid payments upon their encashment. The acceptance of a bill of exchange always requires a prior written agreement with müllermusic. Foreign cheques trigger a collection fee in the amount of €13. Müllermusic does not assume any liability for the timely production, protestation, notification and return of the bill of exchange in cases of non-encashment of the latter, provided that müllermusic or Erfüllungsgehilfen (individuals employed to render contractually owed performances pursuant to Section 278 BGB) employed by müllermusic do not act with intent or gross negligence. Charges / expenditures and interest which may accrue in the context of remittances / payments made from abroad shall be borne by the client. In the case of late payments, müllermusic may invoice a flat rate service fee in the amount of €5 for each reminder served. Moreover, müllermusic is entitled to its further statutory claims and rights. The client may claim set-off rights and rights of retention only insofar as his respective claims have become res judicata or are undisputed.
5.2 Retention of title
Müllermusic retains the legal title to rented instruments as well as to any rented material and accessories. In the case of a purchase, müllermusic retains the legal title to the purchased item until the payment in full of all outstanding claims arising from the purchase contract and, as the case may be, from the existing business relationship. Where müllermusic is the proprietor of the subject matter of the contract, the client is obliged to notify müllermusic of any changes to the site of operation/location, of confiscations, seizures as well as of insolvency proceedings or out of court settlements of or over the assets of the client without delay.
5.3 Compensation for cancellations
In the event that the client cancels his order (rental / project business), müllermusic is – without prejudice to any statutory rights müllermusic may otherwise have – entitled to claim liquidated damages from the client as follows:
- cancellation up to 28 days prior to the commencement of production (intended preparation day): 50% of the total value of the client’s order,
- cancellation up to 14 days prior to the commencement of production (intended preparation day): 80% of the total value of the client’s order,
- cancellation 2 Working days prior to the commencement of production (intended preparation day): 100% of the total value of the client’s order.
The compensations specified above become due irrespective of whether the client is or is not responsible for the reason for the cancellation. They do not accrue where müllermusic is responsible for the cancellation and therefore for statutory reasons such cancellation does not entail any claims for damages or compensation; in such cases any claims of the parties may arise from the applicable statutory provisions only. In relation to the liquidated damages set out above, müllermusic reserves the right to evidence that it has suffered a higher amount of damage and loss and the client may evidence that no or substantially less damage and loss has been suffered.
6. Responsibilities of the Parties / Warranty
6.1 Rental (from müllermusic)
Insofar as it corresponds with the scope of the order, müllermusic is also responsible for the orderly delivery or collection and/or for the required installation, including the assembly and disassembly, of the rented subject matter, otherwise merely for the handover of the rented item ex stock müllermusic.
Where the rented item is discernibly defective already upon the conclusion of the contract, the client may invoke such only if the notice of defect is included in writing in the acceptance certificate. Where a defect shows during the rental period, the client must notify müllermusic of such in writing without delay and must include a precise (and insofar as possible photographically evidenced) description of the defect. Where the client omits to serve the notice of defect, he shall be liable to pay compensation for any damage and loss that may arise from such. The client may only raise claims pursuant to Sections 536, 536a BGB for rent reduction or for damages or for reimbursement of expenses where müllermusic proved to be unable to remedy the limited fitness for purpose or lack of fitness for purpose of the subject matter of the contract following the receipt of a respective written notice of the client within a reasonable period of time by way of repair / specific performance or delivery of a replacement. The right to claim damages is further subject to the restrictions set out in Section 7.
Any sub rental of the subject matter of the contract requires the prior written consent of müllermusic.
The client is obliged to examine any goods delivered immediately (until the second business day following the date of delivery at the latest) following their delivery and to notify müllermusic in writing of any discernible defects, subject to a precise (and insofar as possible photographically evidenced) description of the defect. Hidden defects shall be claimed in writing immediately after becoming known in accordance with the specifications set out above. Defects which are being claimed late, i.e. contrary to the obligations specified above, will not be taken into consideration and are excluded from the warranty. Where existing defects are suitable for causing further damage to the defective product and for endangering individuals or property, the client must immediately cease to use the item and must inform müllermusic of such cessation of use. The resumption of use requires the prior consent of müllermusic. The above shall not affect any existing examination obligations and supervisory duties of the client.
In the case of a defect, in a first step, the client has the right to demand specific performance. Müllermusic decides in its free discretion whether it will deliver a new item or whether it will repair the defect. In the case of a failure, i.e. an impossibility, unreasonableness, refusal or unreasonable delay of the repair or the replacement, the client may rescind the contract or reasonably reduce the purchase price. Where müllermusic proves to be responsible for a defect, the client may claim damages subject to the additional requirements specified in Section 7 below.
The warranty period amounts to one year following delivery. This shall not apply in the case of a liability for loss of life, bodily injury or health impairments as well as in cases of intentional or grossly negligent breaches of duty of the supplier or his Erfüllungsgehilfen. In these cases, the statutory limitation periods apply. The client must in each case evidence that the defect was already in existence upon delivery.
6.3 Assumption of liability by the client
6.3.1 Rental (from müllermusic)
With the handover of the rented equipment to the client and/or his employees or other individuals authorised by him, the risk for the rented equipment passes to the client in whole. The client must ensure that the equipment rented by him is being stored, transported, used and maintained in accordance with the manufacturers’ technical requirements. The client guarantees that the equipment is being operated, installed and moved by qualified personnel in accordance with the technical requirements of the manufacturers and in particular that all safety standards are being observed.
Further, the client must ensure the required insurance cover and must evidence the existence of the cover to müllermusic upon request and from an order volume of €10.000, - onwards without the requirement of such request by way of production of a respective insurance policy. The policy must cover all possible dangers to the equipment of müllermusic, such as theft, vandalism, fire and many more.
6.3.2 Project business (rental from and operation by müllermusic)
The client must ensure that the equipment provided by müllermusic will be stored and operated orderly, safely and dryly at his event / during his production. Müllermusic can refuse the operation of the equipment where circumstances prove not to be suitable. Unsuitable circumstances are in particular such which
- would entail an infringement of statutory provisions or instructions given by public authorities,
- would endanger the safety of individuals,
- could entail damage to the equipment / products provided by müllermusic or to other items.
A respective justified refusal of müllermusic does not affect the payment obligations of the client.
The client must ensure the required insurance cover for the equipment rented by him and must evidence the existence of the cover to müllermusic upon request and from an order volume of €10.000, - onwards without the requirement of such request by way of production of a respective insurance policy. The policy must cover all possible dangers to the equipment of müllermusic, such as theft, vandalism, fire and many more.
7. Limitations of Liability of müllermusic
The liability for damages of müllermusic, irrespective of its legal foundation, is, insofar as culpability is required, limited pursuant to this Section 7.
Müllermusic does not assume any liability for cases of merely negligent acts of its organs, statutory agents, employees or other Erfüllungsgehilfen where no breach of material contractual obligations is involved. An obligation is material to the contract where its fulfilment is a prerequisite for the orderly performance of the contract and whose fulfilment the client may normally rely on.
Insofar as müllermusic is in principle liable for damages pursuant to Section 7.2, such liability is limited to damage and loss which müllermusic has foreseen as a possible consequence of a breach of contract upon entering into the contract or which it could have foreseen had it applied the standard of care customary in business. Indirect damage and loss and consequential loss which arises as a consequence of the defects of the item delivered will only be compensated if such damage and loss can typically be expected in the context of a proper use of the delivered item.
The above limitations and restrictions of liability apply to the same extent for the benefit of the organs, statutory agents and employees of müllermusic.
The above limitations of liability do not apply to liability incurred due to intentional acts, for guaranteed characteristics, for loss of life, bodily injury or health impairments or the strict liability imposed by the Produkthaftungsgesetz (German Product Liability Act).
All claims for damages brought against müllermusic, irrespective of their legal foundation, expire within one year following the delivery of the goods to the client, and in the case of a liability in tort following the acquisition of knowledge or grossly negligent failure to acquire knowledge of the circumstances giving rise to the claim and of the identity of the party liable to pay compensation. The above shall go without prejudice to any liability for intent or gross negligence as well as for any liability arising from a guarantee, from a fraudulent non-disclosure of a defect, for loss of life, bodily injury or health impairments as well as for any liability pursuant to the Produkthaftungsgesetz. In these cases, the statutory limitation periods apply.
8. Place of Jurisdiction
The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of müllermusic in Cologne. The laws of the Federal Republic of Germany apply subject to the exclusion of the United Nations Convention on the International Sale of Goods (CiSG).