of the company Eartunes GmbH Sounddesign for trade and gastronomy, owner & managing director Roland Fugger
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 or consumers in the sense of the Austrian Consumer Protection Act (KSchG). The applications of all provisions of the Consumer Protection Act, in particular via distance selling, are 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”.
- The deliveries, services, and offers of the entrepreneur are made exclusively based on these terms and conditions. These therefore also apply to all future business relationships, even if they are not expressly agreed again.
- Deviations from these terms and conditions are only effective if the entrepreneur confirms them in writing.
- For the effectiveness of these terms and conditions is otherwise sufficient the reference to her and her posting on the Internet, in e-mail offers, order confirmations, invoices
or other company papers. Purchasing or other general terms and conditions of the customer are not binding for the entrepreneur unless they are expressly recognized in writing.
- The offers contained in the Internet presence of the entrepreneur are generally without engagement and are created based on the costs applicable at the time of the submission of the offer. If a calculation basis has changed accordingly, the entrepreneur will notify this in the case of an order immediately before delivery. The customer is then free to maintain the order at the changed price or to refrain from the order.
- The prices quoted are net prices. The VAT is shown separately and charged additionally. The prices of the entrepreneur apply for ex-works. They do not include freight, postage, insurance and other shipping costs.
- Quotations are for a fee. The fee paid for a cost estimate will be credited if an order is placed based on this estimate.
- The acceptance of offers of the customer is only in writing, by fax, by letter or by e-mail to the customer. The acceptance of offers of the entrepreneur is only possible with regard to the total services offered, a restriction to individual components of the offer is excluded. Exceedances of the offer, which are caused by changes of the customer, are regarded as approved by the customer even without notice by the entrepreneur. Order changes or additional orders can be invoiced at reasonable prices.
- Conclusion of contract
- The conclusion of the contract requires the written confirmation of the customer order or the dispatch/delivery of the goods ordered by the customer.
- The plans made available to the entrepreneur by the customer are considered as order and planning principles. Any subsequent changes to the plan must be communicated to the contractor by the customer immediately. Changes made at the beginning of the installation, which cause additional expenses, will be invoiced by the contractor.
- The contractor reserves the right to make technical improvements or adaptations to the applicable technical or design standard even after confirmation of the order, insofar as these are reasonable for the customer.
- Transfer of risk/transport
- The time of the transfer of risk is determined as follows in the following cases:
- a) In the case of sale “ex-works/warehouse”, the risk passes from the entrepreneur to the customer when the goods are made available to the customer.
- b) When shipping the risk passes from the entrepreneur to the customer when the goods leave the sphere of influence of the seller.
- Unless otherwise agreed, the goods are sold as “ex-works”. The entrepreneur is only obliged to take out insurance if and insofar as this has been agreed in writing.
- In the event of damage in transit, the customer must report the damage to the freight forwarder or us within 3 days immediately. The customer must examine our delivery immediately upon arrival, including the hauler for transport damage. Obvious defects of the goods are immediately after receipt of the delivery in writing Report to. Defects that cannot be discovered immediately even with the careful examination are to be reported to us in writing immediately after their discovery.
- performance execution
- The contractor is only obligated to perform the service if all technical and contractual details have been clarified by the customer and the customer has fulfilled his obligations, and the structural, technical and legal conditions for execution have been created.
- Required permits from third parties, in particular from the authorities and collecting societies, must be provided by the customer; the entrepreneur is authorized to arrange mandatory notifications to authorities and collecting societies at the expense of the customer. The customer has to participate in this process and provide the necessary information and signatures.
- 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 safely stored.
- Agreed delivery or assembly dates are only about dates unless they have been expressly promised in writing as fixed dates. If the customer does not comply with his duty to cooperate in the case of fixed deadlines, or if he does not comply with the agreed deadlines, then the contractor is not liable for compliance with the agreed delivery or installation date. This also applies in the case of subsequent order changes by the customer. Also, the entrepreneur is entitled to compensation for the resulting costs.
- In the event of delay in delivery or assembly, the customer can only demand fulfillment and compensation for damages due to delay after setting a reasonable period of grace or can only withdraw from the contract after the renewed setting of a grace period.
- In the case of force majeure or other unforeseeable, exceptional and unrelated circumstances, e.g. material procurement difficulties, breakdowns, strike, lockout, lack of means of transport, official intervention, energy supply difficulties, etc. – even if they occur at suppliers or suppliers – extends, if the contractor is hindered in the timely fulfillment of its obligations, the delivery or Assembly time to a reasonable extent. If the delivery or service becomes impossible or unreasonable as a result of the aforementioned circumstances, the entrepreneur shall be released from the performance obligation. If the performance delay lasts longer than 2 months, the customer is entitled to withdraw from the contract. If the delivery time is extended or if the entrepreneur is released from his performance obligation, Thus, the customer cannot derive any claims for damages. The entrepreneur can only invoke the named circumstances if he has informed the customer immediately.
VII. Acceptance delay
- The customer is obliged to accept the contractually produced and sent or provided for collection without delay; if he does not comply with this obligation, the delivery shall be deemed to have taken place on the day on which the acceptance should have been made in accordance with the contract; Thus, the risk of accidental loss to the customer.
- The entrepreneur is entitled to store the goods at the expense and risk of the customer or to store them with a freight forwarder in the event of default in acceptance or even in the event of delivery failure caused by force majeure.
- The invoices are payable immediately upon receipt and without any deduction, regardless of the device connection and the time of commissioning.
- In case of late payment default interest of 10% is payable. The assertion of further damage caused by default is not excluded. In the event of default, the customer undertakes to replace the dunning and collection charges incurred by the entrepreneur, insofar as this is necessary for proper legal prosecution.
- If a significant deterioration in the financial circumstances of the customer is known or is in default of payment, the entrepreneur has the right to demand immediate payment of all, even unpaid invoices. Also, the entrepreneur has the right to make continuing work on the current applications dependent on pro-rata payments. Besides, the entrepreneur has the right to withhold the goods not yet delivered, as well as to discontinue work on orders still pending in the event of non-payment of the pro-rata payments.
- Before the performance of a conditional down payment, the contractor has no obligation to execute the order. Resulting consequences (for example non-compliance with delivery times) will be borne by the customer.
- The offsetting of claims of the customer with those of the entrepreneur is excluded, unless the entrepreneur has become insolvent or that the counterclaims of the customer with his liability from the contract in a legal context, have been judicially recognized or recognized by the entrepreneur.
- Retention of title
The merchandise provided by the entrepreneur (such as players, etc.) remains the property of the entrepreneur until full payment of all current and future business relationship receivables. The ownership of the on the hardware contained or stored music is in no case transferred to the customer. The customer buys from the collecting societies at most a simple right of use, limited to the public reproduction.
- The warranty is provided, unless otherwise stated or explicitly agreed, by the statutory provisions.
- The customer may first request the free correction of the proven defects within a reasonable period of time.
If a remedy is not possible or only possible at disproportionately high costs, then, at the discretion of the entrepreneur, a reasonable price reduction must be granted or a similar item delivered.
- Claims under the warranty expire if
open defects are not immediately reprimanded upon acceptance of the service provided or the parts affected by the defect have meanwhile been changed or repaired by the customer himself or by a third party. Excluded are emergency repairs or default of the entrepreneur in fulfillment of the warranty.
- The warranty period begins with the handover to the customer or with acceptance by the customer, in case of default of acceptance at the time in which the handover / The takeover should have taken place.
- product liability
- The liability for product damage primarily affects the manufacturer of the product supplied by the entrepreneur, even if this product has been placed on the market by the entrepreneur.
- For the rest, the entrepreneur assumes no liability, unless he can be charged with intent or gross negligence.
XII. limitation of liability
- Claims for damages are excluded unless the damage was caused by negligence or gross negligence. Claims for damages due to the impossibility of performance are limited to the replacement of the foreseeable damage and the value of the order unless the damage was caused deliberately or through gross negligence.
- Furthermore, the entrepreneur shall not be liable for gross negligence on the part of vicarious agents or vicarious agents, unless the charge of gross negligence is met by a manager of the entrepreneur.
- In case of personal injury, we are liable according to the legal regulations.
- Claims for damages shall be asserted in court in the event of another expiry within six months of becoming aware of the damage or within three years of delivery or service provision. After one year from delivery or service rendered by the contractor, the customer bears the burden of proof.
XIII. use License
- The customer does not acquire ownership of the music stored by the storage/playback devices (music computers) or of any updates. Before commissioning the music computer in its business premises, the customer must conclude a license agreement with the responsible collecting societies (in Austria: AKM, in Italy: SIAE, in Germany: GEMA, in Switzerland: SUISA), which entitles the customer to the music in his business enterprise to play in public. In this connection, the customer must truthfully fill in and sign the takeover receipt for music launch packages submitted by the entrepreneur.
- The customer is advised that the hardware supplied by the entrepreneur and the music contained on it are intended for execution purposes only. Distribution (online or offline), broadcasting, rental, leasing or resale are prohibited. A breach of this obliges the customer to pay damages to the entrepreneur. Also, for the benefit of the collecting societies or their members arise injunctive relief, information and compensation claims.
- The customer is prohibited from removing, circumventing or altering the security measures applied by the entrepreneur (encryption, copy protection) or making recordings of the music reproduction. The customer may not add their own music, in particular, download any illegal music files from the Internet and add them to the entrepreneur-supplied music file collection.
- The customer is informed that the employees of the collecting societies are allowed, after advance notice and in suspected cases and without prior notice, to enter the customer’s premises to check compliance with the aforementioned license conditions. The customer agrees that for this purpose also employees of the entrepreneur carry out corresponding inspection visits.
- The entrepreneur may only supply customers with a valid license agreement of the responsible collecting society. Upon request, the customer must prove to the entrepreneur the existence of a valid license agreement.
XIV. Data transmission
- In the case of online data transmission to the customer as part of the streaming offer or the delivery of updates for the music computer, the customer is obliged to provide an Internet connection that has sufficient bandwidth (at least 2MBs).
- If the Wi-Fi password or network parameters are changed, the customer must notify the business owner so that the changed data can be entered into the system to ensure that the updates can be transferred.
- The entrepreneur accepts no liability for the transferability of data in case of insufficient bandwidth or changed passwords and settings.
- final provisions
- The customer agrees that the entrepreneur can pass on information about his business activities to the collecting societies.
- For the contractual relationship, Austrian law applies excluding the UN sales law. Place of performance is Innsbruck; place of jurisdiction is the relevant court in Innsbruck.
- Should individual provisions of these general terms and conditions be or become invalid or void or contain a gap, the legal validity of the remaining provisions shall remain unaffected. Instead of the ineffective or void provision, the parties will agree on an effective provision that most closely approximates the provision intended by the parties. The same applies to the case of loopholes.