General Terms and Conditions of Business (Terms & Conditions) of
Vivid Vinyl GmbH, Auf dem Esch 8, 49356 Diepholz

§ 1 GENERAL | SCOPE OF APPLICATION

1. Our Terms and Conditions of Sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale also apply if we carry out the delivery to the customer without reservation, in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
2. Our Terms and Conditions of Sale also apply to all future transactions with the customer.

§ 2 OFFER | OFFER DOCUMENTS | PRODUCTION MATERIAL

1. We are bound by our offers for 30 days.
2. We reserve the property rights and copyright to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties. This applies in particular to written documents that are designated “confidential”;
   the customer requires our express written consent before passing them on to third parties.
3. Production material and tools not supplied by the customer, in particular glass masters, master negatives, master positives, stampers, film and tape material and artwork, shall remain our property, even if the customer bears the production costs. The customer shall not have any right to the release of these items, even after completion of the order.

§ 3 PRICES | TERMS OF PAYMENT

1. Unless stated otherwise in our offer, our prices apply “ex works”.
2. Statutory value added tax is not included in our prices; it is shown separately on the invoice at the statutory rate on the date of invoicing.
3. The deduction of a discount requires a special written agreement.
4. Unless stated otherwise in our offer, the net purchase price (without deduction) is due for payment within 8 days of the invoice date. If the customer is in default of payment, we are entitled to demand statutory default interest.

§ 4 DELIVERY PERIOD | SHIPPING

1. The start of the delivery period stated by us presupposes that the customer has duly provided us with all the documents required for production, insofar as these are to be provided by it. The specifications in question can be found at https://www.vivid-vinyl.com.
2. If we are in default of delivery for reasons for which we are responsible, the statutory provisions regarding default shall apply. If the delay is due to intent or gross negligence or if there is a breach of a material contractual obligation, statutory liability shall apply. In the event of a merely negligent breach of a material contractual obligation, our liability shall be limited to the amount of the foreseeable damage and excluded in other cases. A “material” contractual obligation within the meaning of these Terms & Conditions shall always refer to an obligation which we culpably breach and on the proper fulfilment of which the customer relies and may expect to rely because it determines the nature of the contract.
3. If, after we have already defaulted, the customer sets us a reasonable grace period, it shall be entitled to withdraw from the contract after the fruitless expiry of this grace period; the customer shall only be entitled to claims for damages in lieu of performance if the default is based on intent or gross negligence or on a material breach of obligation; in the event of a merely negligent breach of a material contractual obligation, the claims for damages shall be limited to the foreseeable damage and shall be excluded in other cases.
4. Compliance with our delivery obligation requires the timely and proper fulfilment of the customer’s obligations.
5. If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to the customer at the point in time at which the customer is in default of acceptance.
6. Partial services are permissible.
7. As a result of the production processes, there may be surpluses or rejects of materials. The consequence is that the order quantities cannot always be met exactly. We are therefore entitled to adjust the order quantity upwards or downwards within reasonable limits.

Excess or short deliveries within the following tolerances are deemed reasonable:

Up to 500 pieces                             Tolerance +/- 20%
500 – 2,999 pieces                           Tolerance +/- 10%
3,000 – 4,999 pieces                        Tolerance +/- 5%
5,000 – 9,999 pieces                        Tolerance +/- 300 pieces
10,000 – 19,999 pieces                   Tolerance +/- 400 pieces

The calculation is based on the quantity delivered.

§ 5 TRANSFER OF RISK

1. Unless otherwise stated in the order confirmation, delivery is agreed “ex works” in accordance with Incoterms by making the packed goods available on the loading ramp.
2. If the customer so requires, we shall arrange shipping on the customer’s behalf.   We shall determine the means of transport at our reasonable discretion. At the customer’s request, we shall take out transport insurance to cover the delivery; the costs incurred in this respect shall be borne by the customer.

§ 6 WARRANTY AGAINST DEFECTS

1. Insofar as there is a defect in the purchased item for which we are responsible, we are entitled to provide supplementary performance in the form of rectification of the defect or a replacement delivery at our discretion. In the event of rectification of the defect, we are obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
2. If the supplementary performance fails, the customer is entitled, at its discretion, to declare its withdrawal or to demand an appropriate reduction of the purchase price.
3. Insofar as further damages occur in the event of a defect and the cause of the damage is based on intent or gross negligence or there is a breach of a material contractual obligation, statutory liability shall apply. In the event of a merely negligent breach of a material contractual obligation, our liability shall be limited to the amount of the foreseeable damage and excluded in other cases. This shall also apply if the customer claims damages in lieu of performance due to the absence of a quality of the item guaranteed by us.
4. The warranty period is 12 months, calculated from the transfer of risk.

§ 7 OVERALL LIABILITY, LIABILITY FOR DOCUMENTS SUPPLIED BY CUSTOMERS

1. The following shall apply to liability for damages beyond § 6: Insofar as the cause of the damage is based on intent or gross negligence or there is a breach of a material contractual obligation, statutory liability shall apply.  The same applies to damages in the event of injury to life, limb or health. In the event of a merely negligent breach of a material contractual obligation, our liability shall be limited to the amount of the foreseeable damage in each case and shall be excluded in other cases – regardless of the legal nature of the asserted claim.
2. The regulation according to para. 1 does not apply to claims under §§ 1, 4 of the German Product Liability Act.
3. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
4. The documents and materials supplied by the customer or produced on the customer’s behalf which we require for fulfilment of the contract, such as masters, printed matter, wrapping, inserts, etc., shall remain the property of the customer. Insofar as this involves digital data, the customer is obliged to provide us with copies. For our part, we are not obliged to make back-up copies of these. We shall take custody of these items free of charge. In this respect, we shall only be liable for our own customary care. The items are not insured by us. The customer is obliged to reclaim these items from us immediately after completion of the last order of a product. If it does not make use of this right to reclaim the documents within a period of one year, calculated from the delivery of the last order of the product, this shall be deemed to be consent to the destruction of the materials in question by us. We are then entitled to destroy these materials at the customer’s expense without any obligation to request the customer to collect them again. We recommend that the customer insures the items at its own risk. In the case of an overproduction of printed matter within the scope of an order (cf. § 4 number 7), any quantity up to 500 units shall be destroyed immediately after completion of the order, unless otherwise agreed when the order was placed.

§ 8 RETENTION OF TITLE

1. We shall retain title to the purchased item until receipt of all payments under the delivery contract.
2. The customer is obliged to treat the purchased item with care; in particular, it is obliged to insure it adequately at its own expense against damage by fire, water and theft at the replacement value.
3. In the event of seizures or other interventions by third parties, the customer shall notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.
4. The customer is entitled to resell the purchased item in the ordinary course of business; however, the customer hereby assigns to us all claims in the amount of the final invoice amount agreed with us (including any value added tax) which accrue to it from the resale in respect of its customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency or composition proceedings has been filed against it and payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor (third party) of the assignment.
5. We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of those securities exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%; the choice of the securities to be released is ours.

§ 9 WARRANTY OF THE CUSTOMER IN CASE OF INFRINGEMENT OF COPYRIGHT, TRADEMARK RIGHTS, ANCILLARY COPYRIGHT AND OTHER INDUSTRIAL PROPERTY RIGHTS

1. If we manufacture records on behalf of the customer, the customer shall guarantee that it holds the right to mechanical reproduction and furthermore the right to use specific film, sound, data and other recordings (for example samples, remixes, film excerpts and work combinations) in whole or in part and undertakes to pay all accruing copyright or other licence fees to the competent authorities. Furthermore, the customer shall guarantee that all designs (photographs, artwork, texts, etc.) do not violate the property rights of third parties, such as copyright, ancillary copyright, design rights, trademark rights and the like, or any other statutory rights and/or prohibitions.
2. The customer is obliged to indemnify us in all respects and on first demand against claims of third parties, including but not exclusively against claims of collecting societies (such as GEMA, GVL, GWVR, etc.), of authors, producers, performing artists, producers of sound carriers, photographers, copywriters, graphic artists and all other holders of rights to the manufactured products, including any of our own and/or third-party legal or court costs incurred in this connection. We are not obliged to verify whether the claims asserted in this respect are substantiated or not.

§ 10 GENERAL PROVISIONS

1. Amendments and supplements to the contract, these Terms & Conditions and/or collateral agreements shall be made in writing to be effective. This shall also apply to any amendment of this requirement of written form.
2. If any provision of the contract and/or these Terms & Conditions is invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid or unenforceable provision with a valid or enforceable provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision.
3. If the customer 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 shall be the court responsible for our registered office. This also applies if the customer does not have a general place of jurisdiction in the Federal Republic of Germany or has moved its usual place of residence abroad after conclusion of the contract. However, we are entitled to take action against the customer at any other legal place of jurisdiction. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

Diepholz, 14 September 2023