B.R. Productions & Packaging GmbH

General Terms and Conditions of Business of the B.R. Productions & Packaging GmbH (as of 08/2009)

I. Area of applicability

These General Terms and Conditions of Business shall exclusively apply to any contracts of the B.R. Productions & Packaging GmbH. The validity of deviating, contradicting and supplementary regulations in the general terms and conditions of the contract partner shall be expressly excluded. Modifications of the General Terms and Conditions including this clause must be made in written form.

II. Conclusion of the contract and execution of the order

The B.R. Productions & Packaging GmbH shall be entitled to avail themselves of third parties to render the contractually assumed services.

III. Remuneration

The respective current prices upon conclusion of the contract shall be considered as agreed for the goods and services of the B.R. Productions & Packaging GmbH, unless other prices have been expressly agreed upon; the respective current prices can be inquired at the B.R. Productions & Packaging GmbH. The preparatory work required to render the contractually assumed services (glass masters, stampers, sketches, drafts, proof sets, test prints, test pressings and samples, authoring, etc.) shall always be remunerated to th B.R. Productions & Packaging GmbH and remain their property. Services which are not mentioned in the price lists of the B.R. Productions & Packaging GmbH shall be remunerated separately. The B.R. Productions & Packaging GmbH shall be entitled to determine the amount of the remuneration for these services. If no separate remuneration has been agreed for such services, the remuneration of the B.R. Productions & Packaging GmbH shall be fixed at a customary local and adequate amount. Invoices are regarded as accepted by the contract partner if he does not object to them in written form within 7 days after receipt of the invoice.

IV. Terms of payment

Unless otherwise agree upon, the invoices of the B.R. Productions & Packaging GmbH shall be payable within 8 days after receipt. Upon expiration of this period, default of payment occurs.
Cheques and bills of exchange will only be accepted upon special agreement and on account of performance. Discount charges and other incurring costs will be borne by the contract partner of the B.R. Productions & Packaging GmbH.
The B.R. Productions & Packaging GmbH shall be entitled to render partial services; these shall be remunerated accordingly.
In the event of default of payment, the contract partner of the B.R. Productions & Packaging GmbH shall be liable to pay compensation; default interests amounting to at least 8% above the base interest rate of the ECB shall be payable.
The B.R. Productions & Packaging GmbH shall be entitled to make the performance of the contractual services dependent upon advance provision of an adequate security or the arrangement of payments on account.
The contract partner of B.R. Productions & Packaging GmbH may only set off claims against undisputed or legally determined counterclaims. He may exercise his rights of refusal and retention only in case of undisputed or legally determined claims.

V. Delivery period

In the event of unforeseeable occurrences (e.g. official measures, operational disturbances, unrests, industrial disputes, delayed material deliveries by third parties, etc.), the delivery period will be extended accordingly.
Delivery periods stated by the B.R. Productions & Packaging GmbH constitute no fix dates, unless the customer specifically pointed out the fixed nature of his order upon conclusion of the contract with the B.R. Productions & Packaging GmbH. The contract partner shall be committed to accept the goods also after expiration of the delivery period. Default in delivery due to missing, faulty or delayed cooperation of the customer does not entail the right to demand compensation from the B.R. Productions & Packaging GmbH. Claims for compensation of the contract partner due to exceeding the delivery period shall be excluded.

VI. Bearing of risk, shipment, storage costs

The shipment will be performed for the account and risk of the contract partner of B.R. Productions & Packaging GmbH. The risk is transferred to the contract partner as soon as the consignment has been handed over to the person or entity executing the delivery. This also applies in case the goods are shipped from a place which is identical to the premises of the B.R. Productions & Packaging GmbH. In case it has been agreed that the contract partner picks up the goods, the risk of loss or deterioration of the goods is transferred to the contract partner of the B.R. Productions & Packaging GmbH 48 hours after receipt of the notice of the readiness for shipment.
The selection of the way and the means of shipment shall be incumbent upon the B.R. Productions & Packaging GmbH.
The packaging and forwarding expenses (freight and postage) as well as the customs duties will be calculated separately by the company B.R. Productions & Packaging GmbH and shall be borne by the contract partner.
The B.R. Productions & Packaging GmbH shall be entitled to return these goods to the contract partner at his costs and risk.
The B.R. Productions & Packaging GmbH shall not be liable for the damage or the loss of the data provided by the customer. The contract parties agree that the B.R. Productions & Packaging GmbH is provided exclusively with copies of the original data still available to the customer. Costs arising from the infringement of the aforementioned obligations shall be borne by the customer.

VII. Default in accepting the delivery

The contract partner shall be committed to immediately accept the contractually agreed services provided by the B.R. Productions & Packaging GmbH.
In the event that the contract partner refuses the accept the delivery after expiration of an adequately set period or declares in advance that he will not accept the contractually agreed services provided by the B.R. Productions & Packaging GmbH, the B.R. Productions & Packaging GmbH may withdraw from the contract and demand compensation.
Within the scope of a claim for compensation, the B.R. Productions & Packaging GmbH may demand as compensation the payment of the remuneration agreed upon with the contract partner without having to demonstrate any further evidence, unless the contract partner is able to verify that no damage has occurred at all or only to a far lower amount.
The B.R. Productions & Packaging GmbH shall be permitted to render several partial deliveries within the delivery period instead of one single delivery, if this is reasonable for the contract partner.

VIII. Warranty

The contract partner shall examine the goods for defects (also for completeness) immediately upon receipt. Objections due to patent defects shall be raised within a preclusion period of 5 days after receipt of the goods in written form, indicating the claimed defect. The B.R. Productions & Packaging GmbH shall be provided the opportunity to examine the defects reported by the contract partner. In case of latent defects, the period for asserting the rights of the contract partner is two years from the delivery of the goods.
In the event that a part of the goods delivered by the B.R. Productions & Packaging GmbH is defective, this shall not give rise to querying the whole delivery, unless the contract partner demonstrates that the partial deliveries are of no interest to him.
Warranty claims against the B.R. Productions & Packaging GmbH fall under the statute of limitation within the period of one year.
In the event that the contract partner reports defects of the services of the B.R. Productions & Packaging GmbH, they initially have the right of rectification. The B.R. Productions & Packaging GmbH shall be granted an adequate grace period for this purpose. The number of rectification attempts is not limited within this grace period. In case the rectification does not entail the contractually agreed success or it is not rendered within the set grace period, the contract partner may demand the reduction of the agreed remuneration or the annulment of the contract. The same applies if the B.R. Productions & Packaging GmbH definitely refuses the rectification. Further warranty or liability for damages, in particular for consequential damages, shall be excluded, unless the B.R. Productions & Packaging GmbH or their subcontractors have acted in an intentional or gross negligent manner.
Excess deliveries of up to 5% to the quantity to be delivered by the B.R. Productions & Packaging GmbH cannot be objected to and are to be remunerated accordingly. Short deliveries of up to 5% to the quantity to be delivered by the B.R. Productions & Packaging GmbH only authorises the contract partner to accordingly reduce the amount of the remuneration; further claims for compensation by the customer shall be excluded, in particular he shall not be entitled to withdraw from the contract.
The B.R. Productions & Packaging GmbH shall assume the expenses required to eliminate the defects, in particular the transport, road, labour and material costs, unless these increase due to the fact that the subject matter of the contract has been taken to a place other than the originally agreed place of dispatch.

IX. Reservation of title

The B.R. Productions & Packaging GmbH reserves the title to the delivered goods until all claims arising from the business relationship with the B.R. Productions & Packaging GmbH have been fully paid for as well as the cheques or bills of exchange have been credited. In case of purchasing consumer goods, the B.R. Productions & Packaging GmbH reserves the title to the delivered goods until the outstanding purchase price has been fully settled.
The contract partner herby assigns all claims arising from the resale of the goods subject to reservation of title to the B.R. Productions & Packaging GmbH to secure all claims of the B.R. Productions & Packaging GmbH arising from the business relationship. Resale in the normal course of business shall only be permitted on the condition that the contract partner receives payments from his customers or reserves the transfer of title for himself until full payment of the purchase price. In the event that the contract partner includes claims arising from the resale of the goods subject to reservation of title into a current account relationship with a third party, the account balance is considered as assigned up to the amount of all claims of the B.R. Productions & Packaging GmbH arising from the business relationship. The contract partner shall be committed to disclose the amount and the reason of his claims as well as the third party debtors from the resale to the providing company. Until further notice, the contract partner shall be authorised and committed to collect the claims assigned to the B.R. Productions & Packaging GmbH.
For the duration of the reservation of title, the contract partner may not pledge the goods or transfer them by way of security.
In case the contract partner falls into arrears, he shall be committed upon request of the B.R. Productions & Packaging GmbH to inform the third-party customer of the assignment of the claims to B.R. Productions & Packaging GmbH as well as to disclose the required information and documents. § 354 a HGB (German Commercial Code) shall remain untouched.
To the amount of their claims arising from the respective order, the B.R. Productions & Packaging GmbH shall have the right of lien to the materials which they came into the possession of within the scope of the order as well as the tools produced for the account of the manufacturer. The right of lien may also be asserted for claims arising from previous goods and services, insofar as they are connected with the above-mentioned goods. The right of lien shall only be applicable to other claims arising from the business relationship if they are undisputed or legally determined.
In the event that the value of the securities provided to the B.R. Productions & Packaging GmbH exceeds the claims of the B.R. Productions & Packaging GmbH against the contract partner arising from the business relationship by 10%, the B.R. Productions & Packaging GmbH will release the excess securities. In doing so, the value of the securities provided by the contract partner is calculated on the basis of the realisable value of the securities at the time of the release.
The contract partner shall immediately notify the B.R. Productions & Packaging GmbH in written form in case of distraints, seizures or other interventions of third parties.

X. Liability

Unless otherwise stipulated in these General Terms and Conditions of Business, the B.R. Productions & Packaging GmbH exclusively assumes liability for damages occurred to the contract partner as follows:

The B.R. Productions & Packaging GmbH shall be liable to the full amount of the damage if they or their subcontractors can be blamed for intentional or gross negligent conduct.
The B.R. Productions & Packaging GmbH shall not be liable for slight negligence, unless the damage results from the infringement of an essential contractual obligation.
The liability of the B.R. Productions & Packaging GmbH for consequential damage caused by a defect as well as indirect damage due to defective products shall be excluded. The aforementioned regulations of a) and b) shall remain untouched.
Insofar as the liability of the B.R. Productions & Packaging GmbH is substantiated, it shall be limited in each case to the damage whose occurrence could be reasonably expected by the B.R. Productions & Packaging GmbH upon conclusion of the contract. This shall not apply in the event of injuries to the legally protected interests of body, life and health.

XI. Starting materials

The contract partner shall deliver the necessary starting material to the B.R. Productions & Packaging GmbH carriage free. In the event of loss or damage of the starting material delivered by the contract partner, the B.R. Productions & Packaging GmbH shall only be liable for the compensation of the damaged starting material in case of slight negligence, although up to an amount of € 2,500.00 at maximum. The aforementioned limitation of the amount of the compensation in case of slight negligence shall also be applicable in case no backup copy is available. The B.R. Productions & Packaging GmbH shall not be liable for normal wear and tear of the starting material provided by the contract partner.
In the event that the B.R. Productions & Packaging GmbH have reservations about the starting material provided by the contract partner, the B.R. Productions & Packaging GmbH shall indicate this to the contract partner. The contract partner shall immediately provide for replacement.

XII. Claims for compensation

In case the starting material provided by the contract partner is damaged or gets lost as a result of elementary damage (fire, water, storm, etc.) or actions/failures of third parties, the contract partner shall be entitled to compensation to the maximum amount stated in § 11 clause 1.
Upon request of the B.R. Productions & Packaging GmbH, the contract partner shall take back the starting material provided. In case the contract partner fails to fulfil his take-back obligation within three months after the request, the procedure stated in VI. 4 shall be followed from the beginning of the fourth month after the request.

XIII. Release from liability

The B.R. Productions & Packaging GmbH shall not be responsible for the contents of the commissioned products. The B.R. Productions & Packaging GmbH shall not be committed to use starting materials containing racist, violent, pornographic or other unlawful or unethical contents. In such cases, the B.R. Productions & Packaging GmbH shall be entitled to withdraw from the contract. The client shall reimburse the costs incurred due to the withdrawal. In case the B.R. Productions & Packaging GmbH is made liable for compensation by third parties due to the starting material delivered by the contract partner, the contract partner shall indemnify the B.R. Productions & Packaging GmbH from any claims asserted.

XIV. Third-party rights

In case the contract partner provides starting materials for the execution of the contract which affect the rights of third parties, he shall guarantee that he exhibits all required proprietary reproduction and exploitation rights and no other rights exist, limiting or excluding the reproduction or exploitation of the materials according to the order placed.
Upon request, the contract partner shall verify the reproduction and exploitation rights to the company B.R. Productions & Packaging GmbH.
The contract partner shall assume all legal or contractual proprietary obligations arising due to the works on the subject matter of the contract. The contract partner shall provide all necessary information and documents for the possibly required registration with the GEMA (German Performing Rights Society).
The contract partner shall indemnify the B.R. Productions & Packaging GmbH from any claims, costs, outlays, damages, fines, etc. on part of third parties due to any kind of infringement of their rights and reimburse to the B.R. Productions & Packaging GmbH all legal costs as well as expenses and outlays incurring on account of this.
In case the contract partner learns of an infringement of third-party rights, he shall immediately notify the B.R. Productions & Packaging GmbH. The same applies in case the contract partner learns of claims asserted by third parties due to the infringement of rights.
The B.R. Productions & Packaging GmbH shall be entitled to disclose the identity and the address of the contract partner to the BSA and the IFPI for the purpose of verification and the protection of the legal holder as well as to provide the products of the B.R. Productions & Packaging GmbH with an SID code and make copies of these products available to the IFPI and the BSA. In case the B.R. Productions & Packaging GmbH is entitled to receive compensation from the contract partner, the amount of the compensation shall be 15% of the gross amount, unless the contract partner is able to verify that the damage or value impairment has not occurred at all or is far lower than the flat rate amount. In the event that the claims for compensation of the B.R. Productions & Packaging GmbH exceed this flat rate amount, the enforcement of further claims for compensation shall not be excluded.

XV. Right of retention

In the event that the contract partner fails to fulfil his obligations towards the B.R. Productions & Packaging GmbH, the B.R. Productions & Packaging GmbH shall be entitled to retain their services to the client until all claims of the B.R. Productions & Packaging GmbH - also those arising from previous business relationships - have been settled.

XVI. Severability clause

In the event that a regulation of these General Terms and Conditions of Business being ineffective in full or in part, the remaining regulations shall not be affected. The contract parties undertake to replace the (partially) ineffective regulation by an effective one which is closest to the sense and the purpose of the (partially) ineffective regulation. In particular flat rate settlements shall be maintained and only their volume/amount shall be adapted to the legally admissible amount.

XVII. Applicable law/Court of competent jurisdiction

The contracts concluded between the B.R. Productions & Packaging GmbH and the contract partner shall be subject exclusively to the legislation of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as the regulations of the German International Private Law.
The place of performance is Görlitz, Germany.
The place of jurisdiction is Görlitz. Depending on the value in dispute, the District Court of Görlitz or the Regional Court of Görlitz is the court of competent jurisdiction.