GTC

§1. General information

The deliveries, services, and offers of duophonic GmbH (duophonic GmbH or “we”) are exclusively based on these General Terms and Conditions, which are acknowledged by the placing of an order. Deviating conditions of the client, which we do not expressly recognize in writing, are non-binding for us and do not become part of the contract, even if we do not expressly contradict them. These delivery and payment terms apply to all future transactions, even if they are not explicitly referred to again. The invalidity of individual conditions does not affect the validity of the remaining conditions.

§2. Conclusion of contract and execution of order

2.1. The contract with the client is only concluded through our written order confirmation or by executing the order.

2.2. We reserve the right to execute the order or parts of it in other production facilities than in Augsburg, maintaining the quality and adhering to the contractual agreements.

§3. Prices and delivery quantities

3.1. For the deliveries and services of duophonic GmbH, the prices valid on the day of delivery according to the price list apply, provided that no different price is stated in the offer.

3.2. In the case of vinyl pressings (but not in the case of vinyl individual productions), there may be technical over- or under-deliveries (max. 10% over-delivery or max. 20% under-delivery). The actual delivered quantity will be billed. This applies to both the pressing and the printed materials.

§4. Terms of payment

4.1. The invoice is issued on the day of delivery, partial delivery, or readiness for delivery (debt to be collected, acceptance delay). Payment of the invoice amount is due within 10 calendar days from the invoice date without deduction, unless otherwise agreed. duophonic GmbH is entitled to demand the invoice amount before the delivery of the goods (prepayment rule).

4.2. If we provide our service in parts, we are entitled to demand partial payments from the client.

4.3. In case of default in payment or deferral, default and deferral interest of 2% above the respective discount rate of the Deutsche Bundesbank is payable, unless a significantly lower damage is proven. The assertion of further default damages remains unaffected.

4.4. In the case of bank transfers and checks, the day on which the credit notice is received by us is considered the payment receipt.

4.5. If the client is in default with an already due payment obligation from the contract, we are entitled to make the remaining debt also due immediately. Furthermore, we are entitled to refuse our performance until the client has rendered the consideration or provided security for it.

4.6. The client may only offset with an undisputed or legally established claim. The exercise of rights of refusal and retention is not available to him.

§5.
Delay in delivery and limitation of liability

5.1. Although duophonic GmbH meets 90% of all specified completion dates on average, delivery dates are only considered approximately agreed. The delivery period begins with the order confirmation and the complete delivery of production-ready documents. The delivery period is also reasonably extended in the event of unforeseen events, such as strikes, official measures, operational disruptions (e.g., due to fire), unrest, labor disputes, technical malfunctions, shortage of raw and operating materials, and other unforeseeable, extraordinary, and unavoidable circumstances on our part or on the part of our suppliers.

5.2. If the client demands compensation for non-performance when duophonic GmbH is at fault for the impossibility of the service or is in default, he can only claim this up to the amount of the invoice amount for the respective order, provided it concerns atypical and unforeseeable damages. The limitation of liability does not apply if duophonic GmbH is accused of intent or gross negligence.

§6. Transfer of risk, shipping and storage costs

6.1. Shipping is at the expense and risk of the client. The risk passes to the client as soon as the shipment has been handed over to the transport person or institution or has left our factory for dispatch. Upon handing over the master to the transport person/company, the risk of accidental loss or accidental deterioration of the master passes to the customer. If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk passes to the client with the receipt of the notification of readiness for dispatch.

6.2. The shipping route and means are left to our choice, unless otherwise agreed.

6.3. If the client requests a special shipping method, the additional costs will be charged. Special requests for the shipping method must be given for each order.

6.4. The shipping costs (freight and postage) as well as customs fees will be charged additionally for deliveries outside Germany.

§7. Default of acceptance

7.1. If the client continues to refuse acceptance after a reasonable grace period with a rejection threat has expired or has previously seriously and finally declared not wanting to accept, we can withdraw from the contract or demand compensation for non-performance.

7.2. As part of a compensation claim, we can demand the order value without proof as compensation, unless the client proves that no damage or significantly lower damage than the flat rate has occurred. The assertion of actually higher damages remains reserved.

7.3. The client is obliged to accept partial deliveries (advance deliveries) as far as this is reasonable.

§8. Warranty

8.1. Complaints due to obvious defects must be raised in writing within 8 days of receipt of the goods. Our inspection must be guaranteed. If the customer receives test pressings (vinyl pressing) or a listening copy (CD) from duophonic and releases them for reproduction, the client cannot claim compensation from duophonic for damages caused by defects that the client knew or should have known based on the test pressing or listening copy. This applies especially, but not exclusively, to the sequence of music tracks, sound (sound quality), background noise, etc.

8.2. Hidden defects that are not discovered during the immediate examination can only be asserted against us if the defect complaint is received within 30 days from the time of acceptance.

8.3. Defects in part of the delivered goods do not entitle to complain about the entire delivery.

8.4. We initially have the right to remedy or replacement delivery. For this, a reasonable period must be granted to us. If the remedy or replacement delivery fails or is not provided within a reasonable period or is refused, the client can demand a reduction in the remuneration or cancellation of the contract. Further warranty and liability for damages, especially for consequential damages, is excluded, unless we or our vicarious agents have acted intentionally or with gross negligence or have explicitly guaranteed properties.

8.5. Over- or under-deliveries of products in the area of CD and vinyl pressing as well as in the area of data carriers (CD-ROM, etc.) cannot be complained about as long as the following tolerances are not exceeded: Order size from 0 to 5,000 pieces with a tolerance of max. +10%/-20%; order size over 5000 with a maximum tolerance of +/- 5%. The delivered quantity will be billed.

§9. Retention of title

9.1. The client remains the owner of the documents he has delivered for production (tapes, data carriers, printed materials, etc.), which are stored at his risk. These documents are only used for the client’s orders and will be destroyed without further notice two years after the last use. All materials produced for production (e.g.: glass master / transfer full development) remain our property.

9.2. The delivered goods remain our property until full payment of all our claims from the business relationship as well as until the redemption of the checks given for this purpose. In the case of a current account, the retained title serves as security for our balance claim.

9.3. All claims of the client from a resale or retained goods are already assigned to us to secure all our claims from the business relationship. If the client includes claims from a resale of the retained goods in a current account relationship with a third party, especially with his customer, the assignable balance up to the amount of our claims is considered assigned.

9.4. All reproduction tools produced by the orderer remain the property of the suppliers commissioned by duophonic GmbH. Pressing tools, matrices, and printed materials are only used for the orderer’s orders and will be destroyed without prior notice two years after the last use.

§10. Liability

10.1. Unless otherwise regulated elsewhere in these General Terms and Conditions, duophonic GmbH is liable for the client’s claims for damages only as follows:

1. a) duophonic GmbH is liable for the full amount of damages if it, its legal representatives or executives are guilty of intent or gross negligence.
2. b) For slight negligence or other (simple) vicarious agents, duophonic GmbH is not liable unless they have violated contractual obligations that are essential for achieving the contract’s purpose or on whose strict compliance the client could rely (cardinal obligations).
3. c) Liability for consequential damages or indirect damages as a result of defective products from duophonic GmbH is excluded.
4. d) If liability of duophonic GmbH is justified, it is limited to typically foreseeable damages at the time of the breach of duty. However, duophonic GmbH will at least replace the value of the contract object to be delivered to the client (order value).
5. e) The provisions of the Product Liability Act remain unaffected.

§11. Source materials

11.1. Raw materials to be procured by the client must be delivered to us in flawless condition free domicile. In particular, image, sound, and data carriers must be readable and free of defects. Defects include, in particular, computer viruses, minimal clicks, dropouts, glitches, incorrect track designations, etc. The customer is liable for additional costs and other damages resulting from defects in the production documents provided by the customer. In the event of defects, the customer must rework or replace the templates submitted to duophonic GmbH at his expense. Any orders to duophonic GmbH to achieve the required quality standard of the templates will be charged extra.

11.2. If we have concerns about the usability of a master tape, the client must immediately procure a new one or commission one from us. We are not liable for normal wear and tear on master tapes and lithographic films or other production items that are repeatedly used.

11.3. In the event of loss or damage to production documents sent to us (such as tapes, CD-Rs, lithographic films, photos, etc.) due to our fault, we are only liable for the material value.

11.4. In the event of fire or burglary, the client will receive only a proportionally calculated share of the insurance sum claimed by us in case of damage or loss. The share is based on the value of the client’s items in relation to our total damage.

11.5. All raw materials stored with us that have not been used for at least twelve months will be returned to the client or destroyed after prior coordination with him. Any costs incurred will be borne by the client.

11.6. We are not responsible for the content of the products ordered. In particular, we are not obligated to use raw materials containing racist, violent, morally offensive, pornographic, otherwise illegal, or, in our opinion, offensive content. In such cases, we are entitled to withdraw from the entire order at any time; the client must reimburse the costs incurred. If we are held liable by third parties for the aforementioned content, we are entitled to demand indemnification and, if necessary, compensation from the client.

§12. Third party rights

The client guarantees that he fully possesses the necessary copyright reproduction and exploitation rights regarding the raw materials he is to provide (master tapes, etc.), in particular the rights managed by GEMA. For the so-called GEMA notification, the client will provide duophonic GmbH with the necessary data and inform duophonic GmbH of the use of published and unpublished own and licensed rights and rights applications to the raw materials supplied. If duophonic GmbH is held liable by third parties (including GEMA) for alleged infringement of third-party rights (in particular, copyright exploitation and distribution rights), the client will fully indemnify duophonic GmbH from these claims and reimburse duophonic GmbH for the necessary costs of legal defense.

§13. Transfer of audio media to analog media (vinyl dubplates)

13.1. Transfers of audio media to analog media (vinyl dubplates as backup copies) can only be executed as direct customer orders. The created media may only be used privately. According to copyright law, the transfer of audio media is generally free of charge. The prices relate only to the use of our devices, the cleaning of the media, the processing, and the material value of the blanks and record sleeves. The creation of the backup copy itself is free of charge.

13.2. The created backup copies are exclusively for the client’s private use and may not be sold or distributed digitally. The client is solely liable for any copyright infringements and indemnifies the contractor from third-party claims for damages arising from copyright infringements.

13.3. We reserve the right to reject orders that violate applicable copyright law. If we recognize a copyright infringement, the order will be rejected.

13.4. This paragraph refers exclusively to vinyl dubplates (backup copies) and not to vinyl pressings.

§14. Final provisions

14.1. duophonic GmbH is entitled to attach a reference to the production of the master by duophonic on the master (run-out groove, vinyl production) and on CD productions (inner ring) to the extent customary in the industry, unless the customer explicitly orders neutrally designed goods when placing the order.

14.2. duophonic GmbH points out in accordance with §§ 28, 29 BDSG that customer data is stored.

§15. Miscellaneous

15.1. Oral side agreements are only effective if they are expressly confirmed in writing by duophonic GmbH.

15.2. The contracts concluded between duophonic GmbH and the client are subject exclusively to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the provisions of German international private law.

15.3. The place of performance is Augsburg, Germany.

15.4. The court of jurisdiction for all disputes arising between duophonic GmbH and the client from the contracts concluded between them – including their initiation – is the Local Court of Augsburg, Chamber for Commercial Matters. duophonic GmbH is also entitled, at its discretion, to sue the client at their place of business.

Alternative dispute resolution pursuant to Art. 14 para. 1 ODR-VO and § 36 VSBG: The European Commission provides a platform for online dispute resolution (OS) which you can find at https://ec.europa.eu/consumers/odr. We are not obligated and not willing to participate in a dispute resolution procedure before a consumer arbitration board.