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