General terms and conditions of dc1 GmbH media & object digitisation
1. Scope
The execution of orders, deliveries and other services of dc1 GmbH - media & object digitization (hereinafter: "dc1") are carried out exclusively in accordance with the following General Terms and Conditions of Delivery (hereinafter: "Terms of Delivery"), which the customer accepts by placing the order or the acceptance of the delivery. They also apply to all future transactions with the client. The validity of deviating and supplementary terms and conditions of the customer is excluded, even if dc1 does not expressly object to them.
2. Conclusion of contract and execution of order
2.1 dc1's offers are non-binding. A contract only comes into being through the written order confirmation from dc1 or with the execution of the order and is based exclusively on the content of the order confirmation (if issued) and on these terms of delivery. A contract is not concluded if its conclusion would mean a violation of EC Regulations 2580/2001 and/or EC 881/2002. Verbal agreements or commitments require written confirmation by dc1 to be effective.
2.2 dc1 is entitled to choose to carry out the order in full or in part in Gütersloh or at other dc1 production sites.
3. Delivery times and dates
3.1 Delivery dates and delivery periods are only binding if they have been confirmed in writing by dc1 and the customer has provided dc1 with all the information and documents required to carry out the delivery in good time and has paid any down payments as agreed. Agreed deadlines begin with the date of the order confirmation. In the case of additional or extension orders placed later, the deadlines are extended accordingly.
3.2 Unforeseeable, unavoidable events that are beyond dc1's sphere of influence and for which dc1 is not responsible, such as force majeure, war, natural disasters, official orders or labor disputes, release dc1 from its obligation to deliver or provide services on time for their duration. Agreed deadlines are extended by the duration of the disruption; the client will be informed in an appropriate manner of the occurrence of the disruption. If the end of the disruption is not foreseeable or if it lasts longer than three months, each party is entitled to withdraw from the contract.
3.3 If the deliveries by dc1 are delayed, the customer is only entitled to withdraw if dc1 is responsible for the delay and a reasonable deadline for delivery set by the customer has expired without success.
3.4 If the parties have agreed on partial services, otherwise only for a justified reason, dc1 can make partial deliveries or provide partial services.
4. Dispatch, transfer of risk, storage, insurance, packaging
4.1 If no provision has been made by the customer, the shipment will be made at dc1's discretion using an appropriate shipping route in the usual packaging.
4.2 The disposal of packaging is the sole responsibility of the client. dc1 is not subject to any take-back obligation according to Section 6 of the Packaging Ordinance.
4.3 The risk passes to the customer when the delivery item is handed over to the transport company or to the customer himself. If the handover or shipment is delayed for reasons for which the customer is responsible, the risk passes to the customer on the day of notification that the delivery item is ready for shipment.
4.4 For goods produced or used by dc1 (e.g. films, tapes as well as graphic products and finished goods etc.) which belong to the customer or are stored for him by dc1, dc1 is entitled to charge an amount of € 60 per month per pallet space used to calculate. The amount increases by € 30 in each subsequent month. After six months, dc1 is entitled to return the goods at the customer's expense and risk or to dispose of the goods at the customer's expense.
4.5 Insurance is only taken out upon request and at the expense of the customer.
5. Prices, terms of payment
5.1 If the contracting parties have not agreed on a specific price, the price shall be determined according to the dc1 price list valid at the time the contract is concluded. If the customer or a third party acting on his behalf gives dc1 its own components (e.g. file components) that are outside the dc1 specifications (e.g. format, volume, processability, etc.) for the execution of his order, then dc1 is entitled to provide the customer with the Processing of such components of the client to invoice additional costs incurred.
5.2 All dc1 prices are ex works excluding the applicable statutory sales tax, any customs duties and packaging and shipping costs (freight, postage), which are charged separately in each case.
5.3 dc1 issues an invoice on the day of delivery (or readiness for delivery in the case of a debt to collect). In the case of partial services or partial deliveries according to Section 3.4, dc1 can also issue an invoice for each partial service or partial delivery.
5.4 Each invoice is due for payment within 14 days of the invoice date without deduction. Payments by the client are only deemed to have been made when dc1 can dispose of the amount.
5.5 If the customer has informed dc1 that he is using a third party to accept deliveries from dc1 and to process payment transactions, in particular to receive invoices and/or pay them, all declarations by dc1 (in particular declarations of intent or business-like actions such as reminders) with their receipt by the third party, also directly to the client. Something deviating only applies if the client has expressly pointed this out to dc1 in writing beforehand.
5.6 In the event of late performance, dc1 is entitled to charge five percent above the applicable base interest rate as default interest. The assertion of further damage caused by delay remains unaffected.
5.7 Bills of exchange and checks will only be accepted on account of performance by special agreement and free of charge and expenses for dc1.
5.8 If, after the conclusion of the contract, dc1 becomes aware of the risk of the customer's inability to pay, dc1 is entitled to only carry out outstanding deliveries against advance payment or the provision of security. If the advance payments or security deposits have not been made even after a reasonable period of grace has expired, dc1 can withdraw from individual or all of the affected contracts in whole or in part. dc1 remains free to assert further rights.
5.9 The client is only entitled to set off if his counterclaim is undisputed or has been legally established.
5.10 The customer is only authorized to assert a right of retention insofar as his counterclaim is based on the same contract, is undisputed or has been legally established.
6. Delay in Acceptance
6.1 If the customer continues to refuse acceptance after the expiry of a reasonable period of grace set for him or previously seriously and definitively declares that he does not want to accept, dc1 can (without prejudice to other possible rights) withdraw from the contract or demand damages instead of performance.
6.2 In the context of a claim for damages according to Section 6.1, dc1 can claim the order value as compensation without proof; the client is entitled to prove that dc1 has not suffered any damage or that it is significantly lower than the flat rate. The assertion of an actually higher damage remains reserved.
6.3 If the client is in default of acceptance or violates other obligations to cooperate, dc1 is entitled to store the goods appropriately at the risk and expense of the client.
7. Quality agreement without assumption of guarantee
7.1 dc1 guarantees that the delivery item has the agreed quality at the time of the transfer of risk; it is measured exclusively according to the concrete agreements made in writing between the parties regarding the properties, features and performance characteristics of the delivery item.
7.2 dc1 does not assume any liability (guarantee) for the quality of the delivery item to the customer that goes beyond the quality agreement according to Section 7.1.
7.3 Specifications in catalogues, price lists and other information material provided to the customer by dc1 are not to be understood as such guarantees for a special quality of the delivery item.
7.4 For delivery items that have been manufactured at the request of the customer using the customer's own components or that a third party has handed over to dc1 on his behalf for the execution of his order (e.g. components provided), dc1 does not assume any warranty or guarantee insofar as deviations from the of the agreed or contractually stipulated quality of the delivery item are based on the use of these external components.
8. Client's rights in the event of defects, obligation to inspect
8.1 The customer's rights in the event of defects in the delivery item require that he inspects the delivery item immediately after handover and notifies dc1 of defects in writing immediately, but no later than two weeks after handover; hidden defects must be reported to dc1 in writing immediately after their discovery.
8.2 Defects in a partial quantity of the entire scope of delivery do not entitle the customer to withdraw from the contract unless the partial delivery is of no interest to the customer. The same applies to the customer's claim for damages instead of full performance ("large damages").
8.3 In the event of any notice of defects, dc1 has the right to inspect and test the object of delivery complained about. The client will give dc1 the necessary time and opportunity for this. dc1 can also request that the customer sends back the delivery item that was the subject of the complaint to dc1 at their expense.
If a notice of defects by the customer proves to be unjustified, he is obliged to reimburse dc1 for all expenses incurred in this connection - e.g. travel and assembly costs or shipping costs.
8.4 dc1 will remedy defects at its own discretion by eliminating the defect free of charge for the customer or by delivering a defect-free part or the entire delivery item as a replacement (collectively "subsequent performance").
8.5 The client will grant dc1 the time and opportunity necessary for subsequent performance. Only in urgent cases of endangering operational safety or to prevent disproportionately large damage or if dc1 is in arrears with subsequent performance, does the client have the right, after immediately notifying dc1, to have the defect remedied himself or by a third party and to have dc1 replace the to demand the necessary costs incurred by him as a result of the supplementary performance.
8.6 The client's rights in the event of defects shall lapse if defects occur for reasons caused by the client, e.g. B. through unsuitable or improper use, incorrect commissioning or incorrect treatment by the client or third parties engaged by him or through natural wear and tear, provided that the defects are not the fault of dc1.
8.7 dc1 shall bear the material, shipping/labor costs and other expenses incurred for the purpose of supplementary performance, insofar as the customer does not have to bear these costs as an exception in accordance with Section 8.3, last sentence.
8.8 If the rectification of defects or replacement delivery fails, if it is unreasonable for the customer or if dc1 has refused it according to § 439 Para. 3 BGB due to disproportionate costs, the customer can choose to withdraw from the contract in accordance with the statutory provisions, reduce the purchase price or claim damages (or, if applicable, reimbursement of expenses).
8.9 The limitation period for the customer's rights to supplementary performance, withdrawal or reduction is 12 months from the time of delivery to the customer.
The statutory limitation periods apply to claims for damages by the customer and his rights in the event of fraudulently concealed defects or defects caused intentionally. If the delivery item is sold directly or indirectly to a consumer as intended by the customer or contractual partners of the customer, the right of recourse against dc1 shall become statute-barred at the earliest two months after the customer has fulfilled the claims of the consumer or his other customers.
9. Indemnification and Limitation of Liability
9.1 dc1 is liable for damages according to the statutory rules, unless clause 9.2 provides otherwise.
9.2 dc1's liability for damage to property and financial losses is limited as follows:
(i) dc1's liability is limited to the foreseeable damage typical for the contract for the slightly negligent breach of essential obligations arising from the contractual relationship.
(ii) dc1 is not liable for the slightly negligent violation of insignificant obligations from the contractual relationship.
These limitations of liability do not apply in cases of mandatory legal liability (in particular under the Product Liability Act) or when a guarantee is assumed.
9.3 Numbers 9.1 - 9.2 apply to all claims for damages, regardless of the legal basis, in particular for liability due to tort.
9.4 The customer is obliged to take appropriate measures to prevent and reduce damage.
10. Retention of Title
10.1 The delivered products remain the property of dc1 until all claims of dc1 from the business relationship with the customer have been paid in full.
10.2 In the case of a current account, the retention of title applies to secure the balance claim to which dc1 is entitled.
10.3 The customer is only permitted to sell the reserved products in the ordinary course of business. The customer is not entitled to pledge the reserved products, to assign them as security or to make other disposals that endanger dc1's property. The customer hereby assigns the claim from the resale to dc1;
dc1 already accepts this assignment.
If the customer sells the reserved products after connecting, mixing or mixing them with other goods or together with other goods, the assignment of claims is only agreed in the amount of the part that corresponds to the price agreed between dc1 and the customer plus a safety margin of ten percent of this price.
The client is revocably authorized to collect the claims assigned to dc1 in trust for dc1 in its own name.
dc1 can revoke this authorization as well as the right to resell if the client is in arrears with significant obligations such as payment to dc1.
10.4 If the reserved products are connected, mixed or mixed with other items, dc1 acquires co-ownership of the new item in the ratio of the value of the reserved products to the other items at the time of connection, mixing or mixing. If the connection, blending or mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to dc1. The resulting co-ownership will be kept by the customer for dc1.
The client will provide dc1 at any time with all desired information about the reserved products or about claims that have been assigned to dc1 thereafter. The customer must notify dc1 immediately of any access or claims by third parties to reserved products and hand over the necessary documents. At the same time, the client will inform the third party of dc1's retention of title.
The client bears the costs of defending against such access and claims.
10.6 The client is obliged to treat the reserved products carefully for the duration of the retention of title.
10.7 If the realizable value of the securities exceeds the total claims to be secured by dc1 by more than ten percent, the client is entitled to demand release in this respect.
10.8 If the customer defaults on significant obligations such as payment to dc1, dc1 can take back the reserved products without prejudice to other rights. In this case, the client will immediately grant dc1 or dc1's agents access to the reserved products and hand them over. If dc1 demands the return based on this provision, this is deemed to be a withdrawal from the contract. dc1 is only entitled to use the reserved products after withdrawing from the contract.
10.9 In the case of deliveries to other legal systems in which the above retention of title regulation does not have the same security effect as in Germany, the customer will do everything possible to immediately grant dc1 corresponding security rights. The client will participate in all measures such as registration, publication, etc. that are necessary and beneficial for the effectiveness and enforceability of such security rights.
10.10 At the request of dc1, the customer is obliged to insure the reserved products appropriately, to provide dc1 with the corresponding proof of insurance and to assign the claims arising from the insurance contract to dc1.
11. Product Liability
11.1 If the customer sells the delivery items unchanged or after they have been combined, mixed or mixed with other goods, he shall indemnify dc1 internally against product liability claims of third parties insofar as he is responsible for the error triggering liability.
12. Input Materials
12.1 Input materials provided by the customer, in particular master tapes and films, must be delivered to dc1 free of charge in perfect condition. If defects are found in the use of input materials that may lead to impairments, the customer is not entitled to compliance with agreed delivery dates.
12.2 dc1 is not liable for normal wear and tear on master tapes and films or other production items that are used repeatedly.
12.3 In the event of fire or burglary, the client only receives a percentage of the sum insured to be claimed from dc1 in the event of damage or loss. The proportion depends on the value of the items owned by the client in relation to the total damage incurred by dc1.
12.4 All input materials stored at dc1 that have not been used for at least twelve months will be returned to the client or destroyed after prior agreement with the client. Any costs incurred shall be borne by the customer. dc1 is not responsible for the ordered products.
12.5 In particular, dc1 is not obliged to use input materials (master tapes, optical media, films, electronic data, etc.) that have racist, violent, pornographic or other illegal content. In such cases, dc1 is entitled to withdraw from the entire order; The customer must reimburse the associated costs. Should dc1 be held liable for damages by third parties due to the aforementioned content, dc1 is entitled to demand indemnification and, if necessary, compensation from the client.
13. Third Party Rights
13.1 With regard to the input materials to be procured by him (magnetic tapes, optical data carriers, films, electronic data, etc.), the customer guarantees that he has all the copyright reproduction and exploitation rights required for the execution of the order. Upon request, the client will submit to dc1 the use of published and unpublished proprietary and licensed property rights and property rights applications for the supplied input materials. In the event that a claim is made against dc1 by third parties (including GEMA) due to the alleged infringement of third-party rights (in particular copyright exploitation rights), the client will fully indemnify dc1 from these claims on first request and dc1 the necessary costs reimburse the legal defense in full.
13.2 If the customer is not able to provide the proof agreed in clause 13.1 with regard to his copyright reproduction and exploitation rights in a sufficiently clear form, dc1 is entitled to retain all products and documents provided by the customer, including any products that have already been reproduced , to inform third-party organizations (e.g. the BSA or the IFPI) and to hand them over the client's products and documents for inspection upon request.
14. General Provisions
14.1 Changes and additions to the contract and/or these terms of delivery as well as ancillary agreements must be made in writing. This also applies to a modification of this requirement for written form.
14.2 If a provision of the contract and/or these terms of sale is wholly or partially invalid, the validity of the remaining provisions shall remain unaffected. In this case, the parties undertake to replace the ineffective provision with an effective provision that comes closest to the economic purpose of the ineffective provision.
14.3 If the client is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is Bielefeld.
This also applies if the customer does not have a general place of jurisdiction in the Federal Republic of Germany or has moved his usual place of residence abroad after the conclusion of the contract. However, dc1 is entitled to sue the client at any other legal place of jurisdiction.
The law of the Federal Republic of Germany applies to the exclusion of the UN Sales Convention (CISG).
Status: October 2022