GTC - Reseller

Noisebringer Records GmbH
General Terms and Conditions for Resellers.

Status 01.11.2023
Note: the German version of our General Terms and Conditions is legally binding.

Inhalt

I. Validity
II. requirements for obtaining reseller status
III. price maintenance for end consumer prices and resale to third parties
IV. Loss of reseller status
V. Conclusion of contract and scope of delivery
VI. purchase price, price changes and terms of payment
VII Delivery times
VIII. Transfer of risk, acceptance and return of goods
IX. Retention of title
X. Liability for defects, manufacturer's warranty and repair
XI. Liability of the "seller"
XII. rights of withdrawal
XIII. Assignment
IXV. Applicable law
XV. Place of jurisdiction and place of performance
XVI. Final provision

I. APPLICABILITY

These General Terms and Conditions of Business and Delivery contain all rights and obligations between Noisebringer Records GmbH - hereinafter referred to as "Seller" - and our contractual partners - hereinafter referred to as "Buyer" - and are solely binding. All our offers as well as all purchase, work and delivery contracts are based on these General Terms and Conditions of Business and Delivery. They shall also apply to all future business relations, even if they are not expressly agreed again. By accepting our offer, the "Buyer" recognizes these terms and conditions, even if they contradict his general terms and conditions in whole or in part, even if we do not expressly contradict them. If the "Buyer" does not agree to this, he must point this out immediately and expressly in a separate letter.

II. REQUIREMENTS FOR OBTAINING RESELLER STATUS

As a seller, we only permit the resale of our products to commercial dealers or corresponding organizations. For this purpose, a potential buyer must provide appropriate evidence before obtaining the status.

These are as follows:

A confirmation from the trade office responsible for the buyer, which must not be older than four weeks.
A valid business tax number, business ID or VAT ID
If the buyer is a corporation (e.g. GmbH or KG), we require an extract from the register not older than four weeks.
A detailed description of the economic activity and an explanation of the reasons for becoming a reseller of the seller.
After receiving the status, the seller reserves the right to review the above conditions, in particular the official requirements, at regular intervals. Should serious changes occur, such as the loss of a business license, this shall automatically result in the loss of reseller status.

The Buyer shall be obliged to notify the Seller of any changes in his commercial framework data insofar as they affect the reseller status granted by the Seller. This includes, in particular, changes to the name and purpose of the business and its cessation or transfer to a third party.

III. PRICE MAINTENANCE FOR END CONSUMER PRICES AND RESALE TO THIRD PARTIES

With reseller status, the buyer is authorized to resell the purchased goods to end consumers. It does not matter whether this is done in a stationary store or via a webshop of the buyer. Reselling to commercial dealers is not permitted.

Sales via trading platforms such as Amazon, ebay or similar are generally not permitted.

Upon conclusion of the reseller agreement, the buyer shall receive an end consumer price list (including statutory VAT). This price list is binding. Under no circumstances may he sell the products below the stated prices.

Discounts and/or promotions with reduced end user prices are only permitted with the prior written consent of the seller.

For its part, the Seller undertakes not to undercut the prices in its own sales channels.

Price promotions by the seller shall be communicated to all resellers concerned in good time. The lead time for this shall be at least 14 days.

Failure to comply with the sales and price fixing rules shall result in the immediate withdrawal of reseller status.

IV. LOSS OF RESELLER STATUS

Should the Buyer willfully violate the provisions of § II. and III., he shall lose the status of a reseller of Noisebringer Records GmbH upon knowledge of the violations. He will be informed of this in writing by the Seller.

This has the consequence that he must immediately stop any sale of the goods delivered by us. Remaining items must be returned to us free of charge. Upon receipt of the goods by us, the buyer shall be reimbursed the purchase price paid by him. This is subject to the condition that the goods are received by us unused and in the condition in which they were delivered.

V. CONCLUSION OF CONTRACT AND SCOPE OF DELIVERY

Information contained in brochures, advertisements and other printed matter is subject to change and non-binding - also with regard to prices. The documents accompanying the offer, such as illustrations, drawings, weights and dimensions, are only approximate unless they are expressly designated as binding. The "Seller" reserves the right of ownership and copyright to cost estimates, samples, price lists and documents; they may not be made available to third parties without the "Seller's" permission.
The written order confirmation shall be decisive for the type and scope of the delivery - also with regard to subsidiary agreements, promises by representatives, changes and additions.

VI. PURCHASE PRICE, PRICE CHANGES AND TERMS OF PAYMENT

The purchase prices are based on the written order confirmation of the "Seller" - but with the right to pass on price increases that have occurred (e.g. due to changes in the exchange rate, freight charges, customs duties and import duties etc.) without prior notice - and are exclusive of the applicable statutory value added tax, which is shown separately in the order confirmation. If the statutory value added tax changes, the price shall change accordingly. Additional deliveries and services shall be invoiced separately. In the absence of special written agreements to the contrary, the prices shall apply ex place of dispatch, which may also be the location of our supplier, excluding packaging and transportation costs. The "Buyer" shall choose the transport route.
In the absence of any special written agreement, payment shall be made in cash and without any deduction free to the "Seller's" paying agent, immediately upon receipt of the delivery. Payments can only be made directly to us with discharging effect. Sales and technical personnel are not authorized to collect payments. Delivery to the "Buyer's" place of business or residence shall be made by cash on delivery or advance payment without deduction of discount. In the case of delivery on account, the term of payment printed on the invoice shall apply, unless otherwise agreed. Unless other express payment terms have been agreed, the "Seller" shall be entitled to collect the purchase price from the "Buyer" by direct debit. The "Buyer" hereby grants his direct debit authorization for the direct debit procedure. Agreements to the contrary must be made in writing. In the event of default in payment, the "Buyer" undertakes to pay interest on the "Seller's" claim at a rate of 5% above the respective prime rate of the European Central Bank without any special reminder. This default interest shall be set at a higher rate if the "Seller" can prove that he has been charged a higher interest rate.
Payment by check or bill of exchange is generally not possible.

VII. DELIVERY TIMES

Unless expressly guaranteed in writing by the "Seller", the stated delivery periods are to be regarded merely as approximate or empirical values.

Claims arising from non-compliance with a delivery period shall only exist if, on the one hand, a delivery period has been expressly guaranteed in writing and, on the other hand, a grace period of at least two weeks has been set by registered letter, whereby the grace period shall commence upon receipt by us and the grace period has also not been complied with by the "Seller".

In the event of unforeseen obstacles at the "Seller" and/or its subcontractors and vicarious agents, such as force majeure and unforeseeable extraordinary circumstances for which the "Seller" is not responsible - e.g. material procurement difficulties, operational disruptions, strikes, lockouts, lack of means of transportation, official interventions, energy supply difficulties, etc. - the delivery period shall be extended by the duration of the disruption to performance caused by these circumstances if the "Seller" is prevented from fulfilling its obligation in good time. However, the "seller" can only invoke the aforementioned circumstances if he informs the "buyer" immediately.

These circumstances entitle the "Seller" to withdraw from the contract in whole or in part, whereby liability for damages due to delay, impossibility of performance and non-performance - insofar as legally permissible - against the "Seller" and its vicarious agents and assistants is excluded, unless the damage was caused intentionally or through gross negligence. If dispatch is delayed at the request of the "Buyer", the "Buyer" shall be charged liquidated damages amounting to 1% of the invoice amount for each month starting one week after notification of readiness for dispatch. The "Seller" and the "Buyer" reserve the right to prove higher or lower damages. However, the "Seller" shall be entitled to dispose of the delivery item elsewhere after setting a reasonable deadline which has expired without result and to supply the "Buyer" within a reasonably extended deadline.

VIII. TRANSFER OF RISK, ACCEPTANCE AND RETURN OF GOODS

The risk shall generally pass to the "Buyer" upon dispatch - handover of the shipment to the person carrying out the transportation - of the delivery parts; in the case of shipment to a consumer within the meaning of § 474 BGB, however, only upon handover - if applicable by the person carrying out the transportation - to the consumer.

The above shall also apply without restriction if partial deliveries are made, which the "Buyer" is obliged to accept without the need for prior express consent, or if the "Seller" has assumed other services, e.g. the shipping costs or delivery.

If the goods are ready for shipment and the shipment or acceptance is delayed for reasons for which the "Buyer" is responsible, the risk shall pass to the "Buyer" upon receipt of the notification of readiness for shipment, but the "Seller" shall be obliged to arrange insurance at the request and expense of the "Buyer". Delivered items are to be accepted by the "Buyer" if they are free of defects or have only minor defects, without prejudice to any warranty rights. The "Seller" must be notified immediately of any transport damage or loss.

If the "Buyer" has ordered a product incorrectly or has ordered a larger quantity of a product than he requires, he can only return these goods if the "Seller" makes a corresponding agreement with the "Buyer". In this case, the "Seller" shall issue the "Buyer" with a credit note for the agreed amount.

IX. RESERVATION OF TITLE

Until the claims (including all current account balance claims) to which the "Seller" is entitled for any legal reason against the "Buyer" from the business relationship, including future claims arising from contracts concluded at the same time or later, have been fulfilled, the "Seller" shall be granted the following securities, which we shall release at our discretion upon request, insofar as their value exceeds the claim by more than 20% on a sustained basis: The goods remain the property of the "Seller" and are hereinafter referred to as reserved goods.

The processing or transformation of reserved goods shall always be carried out by the "Buyer" for the "Seller"; in the sense of an order free of charge. In relation to the "Buyer", § 950 BGB remains excluded. The "Seller" shall retain title to the product at all times and to all degrees of processing. If the reserved goods are processed with objects in the sole ownership of the "Buyer" or with objects for which there is no extended reservation of title, the "Seller" shall be entitled to sole ownership of the new object. If the goods subject to retention of title are processed with other items not belonging to the "Buyer", the "Seller" shall be entitled to co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other items at the time of processing. The "Buyer" shall store the (co-)ownership of the "Seller" free of charge.

The "Buyer" is entitled to resell the reserved goods - in the case of programs only with express written approval and insofar as the right of use permits this - in the ordinary course of business. Pledges or transfers by way of security are not permitted. By way of security, the "Buyer" hereby assigns in full all claims arising from the resale or any other legal grounds (e.g. insurance, tort, etc.) in respect of the goods subject to retention of title (including all current account balance claims) to the "Seller", who hereby accepts the assignment.

If goods subject to retention of title are sold unprocessed or after processing in combination with items that are the exclusive property of the "Buyer", the "Buyer" hereby assigns the claim arising from the resale in full to the "Seller". If goods subject to retention of title are sold by the "Buyer" after processing/combination together with goods not belonging to the "Seller", the "Buyer" hereby assigns the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest. The "Seller" hereby accepts the assignment.

The "Buyer" is authorized to collect this claim even after assignment. The authority of the "Seller" to collect the claim himself remains unaffected by this. However, the "Seller" undertakes not to collect the claim as long as the "Buyer" fulfills his payment and other obligations. The "Seller" may demand that the "Buyer" informs him of the assigned claims and their debtors, provides all information necessary for collection and hands over the relevant documents; in particular the customer orders, order confirmation copies, invoice copies and that the "Buyer" informs his debtors of the assignment to the "Seller". This collection authorization can be revoked in the event that the "Buyer" does not properly meet his payment obligations. In the event of material breach of contract, in particular default of payment, the "Seller" shall be entitled to take back the delivered item. The "Buyer" is obliged to surrender the goods. The taking back or seizure of the reserved goods by the "Seller" shall not constitute a withdrawal from the contract unless the "Seller" has expressly declared this in writing. In the event that the goods delivered by the "Seller" are seized, the "Seller" must be informed of this immediately so that legal action can be taken in accordance with Section 771 of the German Code of Civil Procedure (ZPO). In addition, the party carrying out the seizure must be informed that the seized item is subject to retention of title by the "seller".

Both for the duration of the retention of title and for the following warranty, the "Buyer" is obliged to treat the goods with care and to take the necessary precautions. In addition, the "Buyer" shall insure the goods taken over at his own expense against fire, water, theft and other liability risks. For the duration of the retention of title, the "Buyer" shall assign claims against the insurer in the event of an insured event to the "Seller". Upon request, the "Buyer" is obliged to provide the "Seller" with information about the existing insurance relationship. The "Seller" is entitled to a contractual lien on the object of the order that has come into his possession as a result of the order due to his claim arising from the order. The contractual lien can also be asserted for claims arising from completed orders, insofar as they are related to the subject matter of the order. However, this shall only apply insofar as these claims are undisputed or a legally binding title exists.

X. LIABILITY FOR DEFECTS, MANUFACTURER'S WARRANTY AND REPAIR

For a period of 12 months, the "Seller" shall assume the warranty for defects due to manufacturing or material defects or for faulty work in the case of newly manufactured items, unless the "Buyer" is a consumer within the meaning of § 474 BGB; in this case, the statutory warranty period shall apply. It is presumed in favor of the "buyer" that the defect, if it occurs in the first 6 months after the transfer of risk, was already present at the time of the transfer of risk, unless this presumption is incompatible with the nature of the defect or the "seller" proves that the defect was not present at the time of the transfer of risk. It shall commence on the date of the transfer of risk and, in the case of lists accepted by the "Seller", on their completion. The assurance of special properties of the products or services offered requires the written confirmation of the "Seller".

In the event of justified complaints, the "Seller" shall, at its discretion, deliver a replacement or rectify the defect to the exclusion of other warranty claims. Multiple repairs are permissible. In order to carry out these warranty measures, the defective items, together with all accessories necessary to remedy the defect, must be delivered free of charge by the "Buyer" to the "Seller's" premises. The decision as to whether the goods are to be repaired or replaced shall then be made by the "Seller" after a thorough examination of the defects submitted. If the "Seller" determines that the complaints are unjustified, the goods shall be returned to the "Buyer" carriage forward. If the rectification fails or takes an unreasonably long time, the "Buyer" may demand a reduction in the purchase price or rescission of the contract.

This shall not affect a consumer's right to subsequent performance within the meaning of § 474 BGB.

Warranty claim requirements:

The immediate inspection of the delivered goods for any defects and/or losses as well as a written notification to the "Seller" by means of a statement of facts from the carrier or a written assurance signed by two witnesses and the "Buyer". This shall apply even though the transfer of risk takes place on the basis of the provision in Section V. Otherwise, obvious defects must be reported to us in writing without delay, but within 14 days at the latest.
The immediate provision of all relevant information for the elimination of the defect by the "Buyer" as well as the fulfillment of his obligation under VI.
The delivery of the defective product in the condition in which it was at the time the defect was discovered.

Warranty claims are excluded both in the event of a breach of the aforementioned conditions and if there were no defects at the time of delivery if

the "Buyer" carries out repairs or modifications himself or has them carried out by personnel who are not authorized by the "Seller" to modify or repair the products without written consent or if third-party spare parts have been installed.
damage is due to excessive use, improper handling and/or operation, natural wear and tear or the use of unsuitable accessories or materials.
transport damage caused by the carrier.
the "buyer" resells the delivered products (the warranty therefore only applies in favor of the first buyer).
if a warranty discount on the purchase price has been agreed.
the "buyer" has not followed the instructions for handling, maintenance and care (e.g. operating instructions).

In the case of special requests by the "Buyer" that do not correspond to the standard versions, the "Seller" also accepts no liability for the functionality of and damage to the product. If the "Buyer" makes changes or modifications to the delivered product, the warranty for the delivered goods expires immediately; liability for any resulting damage is generally excluded.
If a manufacturer's warranty exists for the products delivered by the "Seller", the resulting claims of the "Buyer" are to be settled exclusively between the manufacturer and the "Buyer". The manufacturer's guarantee promise does not result in any obligation for the "Seller".
Any warranty claims of the "Buyer" against the upstream supplier of the "Seller" are dependent on prior legal recourse against the upstream supplier of the "Seller" before being asserted against the "Seller". The "Seller" shall only be liable for warranty in the event of unsuccessful prior legal action against the upstream suppliers. In this respect, the "Seller" assigns to the "Buyer" its warranty claims to which it is entitled against its upstream supplier. Repairs not covered by the warranty shall be charged at cost. These will only be accepted if the defective products are delivered to the "Seller" free of charge. The "Seller" also requires a detailed description of the fault and a copy of the invoice in order to speed up processing.

XI. LIABILITY OF THE "SELLER"

Claims arising from defective performance pursuant to §§ 280 I, III, 281, 282, 323, 324 BGB in conjunction with § 241 II BGB or from pre-contractual relationships pursuant to §§ 311 II, III, 241 II BGB and from tortious acts are excluded both against the "Seller" and against its vicarious agents, unless the damage was caused intentionally or through gross negligence. The above paragraph and the penultimate paragraph of Section IV. of these terms and conditions, according to which liability for damages due to delay, impossibility of performance and non-performance against the "Seller" and its vicarious agents is excluded, insofar as legally permissible, unless the damage is caused intentionally or through gross negligence, shall apply accordingly to consulting, service and training contracts.
A claim for compensation for damages that have not occurred to the delivery item/contractual object itself (consequential damages) does not exist for any of the aforementioned types of contract. However, this shall not apply in the case of claims for damages arising from the warranty of quality, which are expressly intended to protect the "Buyer" against the risk of consequential damages or are based on intent or gross negligence. Insofar as products manufactured by the "Seller" are concerned, a claim arising from manufacturer's liability is excluded insofar as it concerns a direct customer.
If the "Seller" has to pay for damage caused by slight negligence on the basis of the statutory provisions in accordance with these terms and conditions, the "Seller" shall have limited liability: Liability shall only exist in the event of a breach of material contractual obligations and shall be limited to the typical damage foreseeable at the time of conclusion of the contract. This limitation shall not apply in the event of injury to life, limb or health. Insofar as the damage is covered by an insurance policy taken out by the "Buyer" for the claim in question (with the exception of sum insurance), the "Seller" shall only be liable for any associated disadvantages suffered by the "Buyer", e.g. higher insurance premiums or interest disadvantages until the claim is settled by the insurance company.
Irrespective of any fault on the part of the "Seller", any liability of the "Seller" for fraudulent concealment of the defect, from the assumption of a guarantee or a procurement risk shall remain unaffected.
Liability for delay in delivery is regulated conclusively in Section IV.

XII. RIGHTS OF WITHDRAWAL

The "Seller" is entitled to withdraw from the contract if a significant deterioration in the financial circumstances of the "Buyer" has occurred, if insolvency, bankruptcy or composition proceedings have been filed or if the "Buyer" is in arrears with the payment of an invoice. The "Seller" is also entitled to withdraw from the contract or to claim damages for non-performance if the "Buyer" refuses to accept the goods by the end of a reasonable grace period set by the "Seller" or expressly declares beforehand that he does not wish to accept them. The "Seller" may demand 25% of the sales price without deductions as compensation for non-performance in the event of default of acceptance, unless the "Buyer" proves that no damage has been incurred at all or not in the amount of the lump sum. Otherwise, the "Seller" reserves the right to claim higher proven damages, such as in the case of special requests.
The "Buyer" may withdraw from the contract if the "Seller" is finally unable to deliver before the transfer of risk. If there is a delay in performance within the meaning of Section IV. of these terms and conditions and the "Buyer" grants the "Seller" in default a reasonable grace period with the express declaration that he will refuse to accept the service after expiry of this period, and if the grace period is not met, the "Buyer" is entitled to withdraw from the contract. If the impossibility occurs during the delay in acceptance or after the transfer of risk within the meaning of Section V. of these terms and conditions, the "Buyer" shall remain obliged to provide consideration. However, in the event of impossibility or default, the "Buyer" may only claim damages if the "Seller" or its vicarious agents or assistants have caused the default in performance intentionally or through gross negligence. Otherwise, the contract can only be terminated for good cause.

XIII. ASSIGNMENT

The assignment of claims of the "Buyer" against the "Seller" to third parties is excluded.

IXV. APPLICABLE LAW

The legal relationship between the "Seller" and the "Buyer" shall be governed exclusively by German law.
In principle, only the German version of the GTCs shall apply. Any translation errors in the English version are of no significance. The German version can be found here.

XV. PLACE OF JURISDICTION AND PLACE OF PERFORMANCE

The place of performance for all obligations arising from contracts under the law of obligations, in particular for delivery and payment, is the place where the "Seller's" place of business is located.
The exclusive place of jurisdiction for all disputes arising from the contractual relationship is, if the contractual partner is a merchant, a legal entity under public law or a special fund under public law, or if the "Buyer" has no general place of jurisdiction in Germany, the court which has jurisdiction for the "Seller's" place of business.

If different terms and conditions indicate different places of jurisdiction, the Bamberg Local Court or the Bamberg Regional Court (depending on the factual allocation) is hereby agreed as the place of jurisdiction.

XVI. FINAL PROVISION

Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. An invalid provision shall be replaced by a valid provision that comes as close as possible to the invalid provision. With the announcement of these terms and conditions, all previous terms and conditions lose their validity.