General Terms & Conditions

Terms and Conditions

of the company Eartunes GmbH Sounddesign für Handel und Gastronomie, owner & managing director Roland Fugger

I. General information

Our offer is aimed exclusively at entrepreneurs and commercial and/or institutional customers in Austria, Switzerland, Italy and Germany. We do not deliver to consumers within the meaning of the Austrian Consumer Protection Act (KSchG). The application of all provisions of the Consumer Protection Act, in particular regarding distance selling, is therefore excluded.

For licensing reasons, our offer is only valid for D/I/CH/AUT.

The company Eartunes GmbH is hereinafter referred to as “entrepreneur”.

II. Scope of application

  1. The deliveries, services and offers of the entrepreneur are made exclusively on the basis of these terms and conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again.
  2. Deviations from these terms and conditions are only effective if the entrepreneur confirms them in writing.
  3. For the validity of these General Terms and Conditions reference to them and their publication on the Internet, in e-mail offers, order confirmations, invoices or other company documents. Purchasing or other general terms and conditions of the customer are not binding for the entrepreneur unless they are expressly recognised in writing.

III. Offers

1. The offers contained on the entrepreneur’s website are always subject to change and are prepared on the basis of the costs applicable at the time the offer is submitted. Should a calculation basis have changed accordingly, the Contractor shall inform the Customer of this immediately prior to delivery in the event of an order. The customer is then free to maintain the order at the changed price or to cancel the order.

2. The prices quoted are net prices. Value added tax is shown separately and charged additionally. The contractor’s prices are ex works. They do not include freight, postage, insurance and other shipping costs.

3. Cost estimates are subject to payment. The fee paid for a cost estimate shall be credited if an order is placed on the basis of this cost estimate.

4. Acceptance of the customer’s offers shall only be transmitted to the customer in writing, by fax, by letter or by e-mail. Acceptance of the Contractor’s offers is only possible with regard to the entire services offered; a restriction to individual components of the offer is excluded. If the offer is exceeded as a result of changes made by the Customer, the Customer shall be deemed to have approved the offer even without notification by the Contractor. Changes to the order or additional orders may be invoiced at reasonable prices.

5. The conclusion of the contract requires the written confirmation of the customer order or the dispatch/delivery of the goods ordered by the customer.

6. The Contractor reserves the right to make technical improvements or adaptations to the applicable technical or design standard, even after order confirmation, insofar as these are reasonable for the Customer.

V. Hazard transition/transport

1. The time of transfer of risk shall be determined as follows in the following cases:

a) In the case of sale “ex warehouse/factory”, the risk is transferred from the entrepreneur to the customer when the goods are made available to the customer.

b) In the case of dispatch, the risk is transferred from the entrepreneur to the customer when the goods leave the seller’s sphere of influence.

2) Unless otherwise agreed, the goods are deemed to be sold “ex works”. The entrepreneur is only obliged to take out insurance if and insofar as this has been agreed in writing.

3. In the event of transport damage, the customer must immediately notify the carrier or us of the damage within 3 days. The customer must inspect our delivery for transport damage immediately upon arrival with the involvement of the carrier. Obvious defects in the goods must be reported in writing immediately upon receipt of the delivery.

Defects that cannot be discovered immediately even after careful inspection must be reported to us in writing immediately after discovery.

VI. Service execution

1. The Contractor shall not be obliged to perform the service until all technical and contractual details have been clarified by the Customer and the Customer has fulfilled its obligations and the structural, technical and legal requirements for performance have been met.

2. Necessary authorisations from third parties, in particular from the authorities and collecting societies, must be provided by the customer; the contractor is authorised to arrange for the required notifications to authorities and collecting societies at the customer’s expense. The customer must co-operate in this and provide the necessary information and signatures.

3. The customer must ensure that the machines, materials and equipment required by the contractor for the installation of the system can be delivered to the place of performance and stored safely.

4. Agreed delivery or installation dates are generally only approximate dates, unless they have been expressly agreed in writing as fixed dates. If the customer fails to fulfil his obligations to cooperate in the case of fixed dates or fails to meet the agreed dates, the contractor shall not be liable for compliance with the agreed delivery or assembly date. This shall also apply in the event of subsequent changes to the order by the customer.

In addition the Contractor is entitled to compensation for the costs incurred as a result.

5. In the event of a delay in delivery or assembly, the customer may only demand fulfilment and compensation for damages due to delay after setting a reasonable grace period or declare withdrawal from the contract only after setting a new grace period.

6. In the event of force majeure or other unforeseeable, extraordinary circumstances for which the Contractor is not responsible, e.g. difficulties in procuring materials, operational disruptions, strikes, lockouts, lack of means of transport, official interventions, energy supply difficulties, etc. – even if they occur at upstream suppliers or subcontractors – the delivery or assembly time shall be extended by a reasonable period if the Contractor is prevented from fulfilling its obligations on time. If delivery or performance becomes impossible or unreasonable due to the aforementioned circumstances, the Contractor shall be released from the obligation to perform. If the delay in performance lasts longer than 2 months, the customer is entitled to withdraw from the contract. If the delivery time is extended or if the Contractor is released from its obligation to perform, the Customer shall not be entitled to claim any damages.

The contractor can only invoke the aforementioned circumstances if he has informed the customer immediately.

VII. Default of acceptance

1. The customer is obliged to immediately accept the goods manufactured and sent or made available for collection in accordance with the contract; if he does not fulfil this obligation, the delivery shall be deemed to have taken place on the day on which acceptance should have taken place in accordance with the contract; the risk of accidental loss shall thus pass to the customer.

2. In the event of default of acceptance or in the event of impossibility of delivery due to force majeure, the entrepreneur shall be entitled to store the goods himself or to store them with a forwarding agent at the customer’s expense and risk.

3. Invoices are payable immediately upon receipt and without any deductions, regardless of the device connection and the time of commissioning.

4. Default interest of 10 % shall be payable in the event of late payment. This shall not exclude the assertion of further damages caused by default. In the event of default, the customer undertakes to reimburse the dunning and collection expenses incurred by the contractor, insofar as necessary for appropriate legal action.

5. If a significant deterioration in the customer’s financial circumstances becomes known or if he is in default of payment, the entrepreneur shall be entitled to demand immediate payment of all invoices, including those not yet due. In addition, the Contractor has the right to make further work on current applications dependent on pro rata payments. In addition, the Contractor shall have the right to withhold the goods not yet delivered and, in the event of non-payment of the pro rata payments, to cease further work on current orders.

6. The Contractor shall not be obliged to fulfil the order before a stipulated advance payment has been made. Any consequences arising from this (e.g. failure to meet delivery deadlines) shall be borne by the customer.

7. The offsetting of the Customer’s claims against those of the Contractor is excluded unless the Contractor has become insolvent or the Customer’s counterclaims are legally related to its liability arising from the order, have been established by a court or have been recognised by the Contractor.

IX. Retention of title

The hardware delivered by the entrepreneur (e.g. playback devices etc.) shall remain the property of the entrepreneur until full payment of all current and future claims arising from the business relationship. The ownership of the music contained or stored on the hardware shall under no circumstances be transferred to the customer. The customer acquires at most a simple right of use from the collecting societies, limited to public reproduction.

1. Unless otherwise specified or expressly agreed below, the warranty shall be provided in accordance with the statutory provisions.

2. The customer may initially demand that the proven defects be rectified free of charge within a reasonable period of time.

If rectification is not possible or only possible at disproportionately high cost, the Contractor shall, at its discretion, grant an appropriate price reduction or deliver an identical item as a replacement.

3. Warranty claims shall lapse if

obvious defects are not reported immediately upon acceptance of the service provided or the parts affected by the defect have been modified or repaired by the customer himself or by a third party in the meantime. Exceptions to this are emergency repairs or if the contractor is in default of fulfilment of the warranty.

4. The warranty period shall commence upon handover to the customer or upon acceptance by the customer or, in the event of default of acceptance, at the time at which the handover/acceptance should have taken place.

XI. Product liability

1. Liability for product damage shall primarily be borne by the manufacturer of the product supplied by the entrepreneur, even if this product was placed on the market by the entrepreneur.

2. Apart from this, the entrepreneur assumes no liability unless he can be accused of wilful intent or gross negligence.

XII. Limitation of liability

1. Claims for damages are excluded unless the damage was caused by negligent or grossly negligent behaviour. Claims for damages due to impossibility of performance are limited to compensation for the foreseeable damage and the amount of the order value, unless the damage was caused by wilful intent or gross negligence.

2. Furthermore, the contractor shall not be liable for gross negligence on the part of vicarious agents or assistants, unless the accusation of gross negligence is levelled at a senior employee of the contractor.

3. In the event of personal injury, we shall be liable in accordance with the statutory provisions.

4. Claims for damages must be asserted in court within 6 months of knowledge of the damage or within 3 years of delivery or provision of the service, otherwise they shall lapse. After one year from delivery or provision of service by the entrepreneur, the customer shall bear the burden of proof.

XIII. Usage licence

1. The customer does not acquire ownership of the music stored by the storage/playback devices (music computers) or of any updates. Before using the music computer in his business premises, the customer must conclude a licence agreement with the responsible collecting societies (in Austria: AKM; in Italy: SIAE, in Germany: GEMA, in Switzerland: SUISA), which entitles the customer to publicly reproduce the music in his business premises. In this context, the customer must truthfully complete and sign the confirmation of acceptance for music start packages submitted by the entrepreneur. 2.

2. The customer is advised that the hardware supplied by the entrepreneur and the music contained therein are intended for performance purposes only. Distribution (online or offline), broadcasting, rental, leasing or resale are not permitted. Any violation of this provision shall oblige the customer to pay damages to the entrepreneur. In addition, claims for injunctive relief, information and damages arise in favour of the collecting societies or their members.

3. The customer is prohibited from removing, circumventing or modifying the security measures applied by the entrepreneur (encryption, copy protection) or making recordings of the music playback. The Customer may not add any music of his own, in particular download illegal music files from the Internet and add them to the music file collection supplied by the Contractor. 4.

4. The customer is informed that the employees of the collecting societies are permitted to enter the customer’s business premises after prior notice and in suspicious cases without prior notice in order to check compliance with the aforementioned licence conditions. The customer agrees that employees of the entrepreneur may also carry out corresponding inspection visits for this purpose.

5. The Contractor may only supply customers with a valid licence agreement from the relevant collecting society. Upon request, the customer must provide the contractor with proof of the existence of a valid licence agreement.

XIV. Data transmission

1. In the case of online data transmission to the customer as part of the streaming offer or the delivery of updates for the music computers, the customer is obliged to provide an Internet connection with sufficient bandwidth (at least 2MBs).

2. If the WLAN password or network parameters are changed, the customer must inform the entrepreneur of this so that the changed data can be entered into the system in order to ensure that the updates can be transferred.

3. The entrepreneur assumes no liability for the transferability of data in the event of insufficient bandwidth or changed passwords and settings.

XV. Final provisions

1. The customer agrees that the entrepreneur may pass on information about his business activities to the collecting societies.

2. The contractual relationship shall be governed by Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Place of fulfilment is Innsbruck, place of jurisdiction is the competent court in Innsbruck.

3. Should individual provisions of these General Terms and Conditions be or become invalid or void or should they contain a loophole, the legal validity of the remaining provisions shall remain unaffected. In place of the invalid or void provision, the parties shall agree on a valid provision that comes closest to the economic purpose of the provision intended by the parties. The same applies in the event of loopholes.