54
(1)
Preamble
Unless otherwise agreed in writing, the General Terms and
Conditions of Sony DADC Austria AG (hereinafter referred to as
”DADC”) shall form an integral part of all quotations and
purchase contracts. Customer’s purchasing conditions differing
from these General Terms & Conditions shall be of no effect.
(2)
Terms of Sale
(2.1.)
Quotation and Price
Unless otherwise agreed, the prices are understood net ex
Supplier’s domicile in A-5081 Anif, Sonystrasse 20, exclusive of
freight and without any discount. The prices of the last quotation
made by DADC shall apply.
(2.2.)
Order and Order Acknowledgement
(2.2.1.) For each product-type minimum order quantities exist which are
part of DADC’s Customer Manual for the specific product.
(2.2.2.) All orders from Customer to DADC must be in writing, and shall
be considered accepted if confirmed in writing by DADC.
Agreements, if any, with agents and/or representatives and other
agreements with Customers including legally binding promises or
deviations from the general terms and conditions will not be valid
unless also accepted in writing by DADC.
(2.3.)
Quantity to be delivered
The quantity to be delivered shall be determined by DADC’s
order acknowledgement in writing. Unless otherwise agreed the
Customer agrees to accept production-related variations in the
quantity to be delivered of more or less than 5% per title ordered.
For orders of 1,000 units or less per title, the Customer shall
accept production-related deviations of up to 100 units, which
will be charged in the invoice.
(3)
Delivery Time
(3.1.)
The delivery period agreed shall commence as soon as DADC
has received from the Customer all components required
according to DADC’s specification. Delivery shall be considered
to have been made in time if the goods ordered have left the
factory in A-5081 Anif or A-5303 Thalgau prior to expiration of
the period of delivery.
(3.2.)
Delivery periods and delivery dates shall be understood to be
without engagement.
(3.3.)
DADC shall have the right to make part deliveries and advance
deliveries. A cancellation of orders by the Customer, although it
might be legitimate and following an extension of the delivery
period, shall not apply to part deliveries or advance deliveries
made before.
(4)
Place of Fulfilment and Passage of Risk
(4.1.)
The place of fulfilment and passage of risk for all deliveries shall
be the factory of DADC in A-5081 Anif or A-5303 Thalgau, or a
distribution warehouse separately specified by DADC.
(4.2.)
The risk in respect to the goods delivered shall pass to Customer
at the time they are delivered to the carrier. This also applies to
part deliveries.
(4.3.)
Except as otherwise provided herein, shipment and method of
shipment shall be exclusively determined by DADC. DADC shall
arrange for the transport and shall pay the cost of transport
packing as well as the cost of usual transport insurance for an
insurance value up to the amount of the relevant DADC invoice.
Other expenses, e.g. expenses for specific packing, extra cost
for individual consignments, freight charges, etc. shall be for
exclusive account of Customer. The Customer shall have to pay
all customs duties, sales taxes, border expenses etc. even if the
order for transport has been given by DADC.
(4.4.)
In the event of delay of shipment caused by circumstances within
the responsibility of Customer, all risks including the risk of acci-
dental loss shall pass to the Customer at the time DADC gives
notice that the goods are ready for collection, i.e. at the time
such notice is sent by DADC. In the event of delay caused by
circumstances within the responsiblity of Customer, the
Customer will be charged storage cost of at least 5% per month
of the gross invoice value, beginning at the time DADC has given
notice that the goods are ready for shipment.
(5)
Invoices and Terms of Payment
(5.1.)
The prices agreed are understood ex DADC factory in A-5081
Anif/Austria, Sonystrasse 20, exclusive of sales tax (VAT).
All payments shall have to be made in cash, free of charges and
without deductions. Enforcement of counterclaims by setoff or by
exercise of retention rights by the Customer shall be excluded,
provided such exclusion is permitted by the laws in vigor.
(5.2.)
Payments shall not be considered to discharge the debtor unless
made into DADC’s banking account, except as otherwise agreed
(e.g. payment by cheque).
(5.3.)
All payments shall be first counted against the expenses (dun-
ning expenses, legal expense), then against interest accrued,
and finally against the capital, i.e. against the oldest outstanding
debt. Cheques and bills of exchange shall be accepted upon
special agreement only, and merely on account of payment, not
in lieu of payment. Cheques and bills of exchange shall be consi-
dered payment upon encashment, at the value date on which
they have been credited to DADC by the bank. DADC shall have
the right to refuse, without showing cause, any payment offered
by cheques or bills of exchange.
(5.4.)
Unless otherwise agreed, all invoices issued by DADC shall be-
come due for payment within 30 days from invoice date, without
any deduction.
(5.5.)
The place of performance of all payments shall be A-5081
Anif/Austria, Sonystrasse 20.
(6)
Consequences of Delayed or Refused Performance
(6.1.)
Even after having accepted an order, DADC shall also have the
right to refuse performance and/or delivery if, as a result of a
circumstance become known or arising also after the contract
has been concluded, there is fear that the Customer will be un-
able to fulfil his duties completely or in time or if the contents of
the film, sound, data or other software recordings given to DADC
for duplication violate laws or moral principles. Similarly, DADC
shall be entitled to refuse the acceptance of the order and/or the
delivery unless it is clear without doubt that the Customer dis-
poses of all rights for duplication of the recordings concerned.
(6.2.)
Where the period allowed for payment has been exceeded,
Customer shall be considered to be in default, without that any
special notice has to be given by DADC. In such case DADC
shall have the right to cancel all periods allowed for payment - in-
cluding these for accepted bills - and to demand payment imme-
diately. In all cases of agreements on payment in instalments,
non-payment of any one instalment shall constitute default on
the part of Customer, to the extent permitted by law.
(6.3.)
In the event of default of payment, the Customer shall have to
pay interest on the sums due and unpaid, in the rate of the refi-
nancing cost prevailing, but not less than 12% per annum. All
extrajudicial dunning and collection expenses, including the cost
of legal advisers and debt collectors, shall have to be paid by
Customer.
(7)
Delivery to Third Parties
Where a Customer specifies that an order given by him, or any
part thereof, be shipped and invoiced to a third party (i.e. to an
affiliate company of Customer or one of his distribution partners
etc.), Customer shall continue to be liable towards DADC. DADC
shall have the right to charge extra cost incurred for packing and
transportation. If the delivery is to be carried out on behalf of a
Customer by DADC directly to a third party in a non EU country,
the Customer shall make available to DADC either the commer-
cial invoice or the merchandise value which has to be paid by the
third party for the assessment of the import taxes.
If such delivery is carried out to a third party in an EU country,
the Customer shall make available to DADC the VAT identification
number of the third party prior to the delivery. If such information
is not provided by the Customer or is incomplete or incorrect, he
shall indemnify and hold harmless DADC in this respect, parti-
cularly with a view to any customs penalties and duties.
(8)
Defects Liability Guarantee
(8.1.)
In case of a complaint, the Customer shall have to provide for
proper storage of the rejected goods, and to hold them at
DADC’s disposal until the complaint has been settled.
(8.2.)
DADC shall have the right to release itself from any claims for
reasonable reduction of price by correcting defective goods
and/or by supplying missing goods in a manner acceptable to
Customer. Defects of a part of a shipment (order) do not give
right to reject the complete shipment.
(9)
Retention of Ownership
All goods delivered shall remain in DADC’s property until all
claims DADC may have under its relationship with Customer
have been fully satisfied.
(10)
Claims for Damages
Claims for damages raised by Customer for breach of contract
by DADC e.g. for non-fulfilment or for default, shall be excluded
unless Customer furnishes proof that the damage has been
caused by gross negligence on the part of DADC.
(11)
Rights of Mechanical Duplication, Copyrights, Author Rights,
Other Rights
Customer declares to possess all rights for the purpose of
duplication, including the right of mechanical duplication, the
right to use certain film-, sound-, data- or other software recor-
dings etc. and he guarantees that all copyright fees and other
payable fees be paid to the owner of the rights or to the compe-
tent organizations representing the owners, and that no claims in
this respect will be raised against DADC. Customer shall indem-
nify DADC in all respects, in particular for claims raised by third
parties, including claims for copyright organizations or other
organizations, and for expenses arising from legal or court action
for asserted or factual violation of such rights. Such indemnifi-
cations shall include production cost, if any, incurred by DADC.
The Customer agrees that DADC will disclose that information on
individual orders to copyright utilization companies and other
organizations dealing with the protection of copyrights of any
kind, which is required by these companies for ensuring a proper
licence settlement and/or for the control of safeguarding any
copyrights.
(12)
Miscellaneous
(12.1.) Customer shall furnish to DADC his specific production material,
including master, label films, print films etc. corresponding to the
specification given in DADC’s customer manual in vigor. Where
Customer furnishes production material which is not in line with
applicable DADC specifications, DADC can complete, improve or
return such production material at the expense of Customer.
(12.2.) Print material delivered by the Customer can be used only if
complying with DADC specifications. Except as otherwise
agreed, DADC shall not be obliged to store print materials in
excess of the disc-quantity ordered. Customer agrees that DADC
shall not be liable for losses up to a maximum of 5% occurring
during packaging, machine adjustment, disruptions etc.
(12.3.) All material to be delivered to DADC by Customer or on
Customer’s behalf, shall be ”delivered Anif duty paid” in accord-
ance with INCOTERMS.
(12.4.) After 3 months Mastertapes (CD-R, U-Matic, etc.) will either be
scrapped or returned at customer’s request and expense.
Same procedure will apply for films (Artwork- and Labelfilms)
without reorder for 2 years.
The cost paid for by Customer for master and stamper produc-
tion merely include the services rendered by DADC in connection
therewith, while masters and stampers shall remain the property
of DADC. If so requested by Customer, they will be destroyed
upon completion of production. In case of a destruction, any
repeat order shall be considered a new order, with all costs con-
nected therewith.
(12.5.) Customer guarantees that DADC will only receive duplicates of
masters, label films and films for preparation of print materials.
Should DADC be liable for loss or damage to such materials,
such liability shall be limited to the value of material, but not ex-
ceeding a maximum value of
€
1,000.
(12.6.) In case the goods supplied by DADC are passed or sold to third
parties, Customer shall have to inform such third party in regard
to proper use and handling of the goods.
(12.7.) Customer shall not have the right to use the company name of
DADC or a component thereof, nor any reference to the company
name of DADC on its products, notices, business or advertising
materials, unless expressly agreed by DADC in writing.
(12.8.) Austrian law shall exclusively apply to all quotations and pur-
chase contracts, as well as to these General Terms and
Conditions.
DADC and Customer agree that all disputes arising out of these
Terms and Conditions be referred to the courts having jurisdic-
tion in the province capital of Salzburg, waiving any other venue
of jurisdiction.
(12.9.) Additional agreements, information and complaints shall have to
be made in writing, and can be accepted only if sent to Sony
DADC Austria AG, A-5081 Anif/Austria, Sonystrasse 20, for the
attention of ”Customer Service”. Notices given to DADC
shall not be legally effective unless sent to such address.