As of: November 6th, 2017
§ 1 General
a) Scope of Applicability
These Terms of Business are applicable to all business relationships between Galaxis Showtechnik GmbH, Emmertinger Strasse 2, 84524 Neuötting, Germany, represented by its Managing Directors: Mr. Alexander Buchner and Mr. Ralph Kränzle (hereinafter: Galaxis Showtechnik GmbH) and the customer in the version in effect at the time of contract formation. Conflicting terms of business of the customer are hereby expressly rejected.
b) Contractual Agreements
The contract languages are German and English. In cases of doubt about wording, the German version of the Terms of Business take precedence. Galaxis Showtechnik GmbH does not enter into any contracts with minors or consumers. The products and services offered by Galaxis Showtechnik GmbH are therefore exclusively intended for businesses within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). Supplementary agreements must be made in writing.
c) Limitations on Export and Use
The products of Galaxis Showtechnik GmbH are not permitted to be exported to or used in the United States of America or Canada, unless Galaxis Showtechnik GmbH exports these directly to customers resident in these countries. Use in these countries requires express written permission and the arrangement of supplementary third-party liability insurance.
d) Contract Formation
The presentation of the products and services of Galaxis Showtechnik GmbH online or in catalogs is non-binding and subject to change. Contract formation is always by individual agreement, whereby Galaxis Showtechnik GmbH prepares a quote based on a customer inquiry, and the customer then issues a binding acceptance within the period stipulated in the quote. The customer subsequently receives an order confirmation from Galaxis Showtechnik GmbH.
§ 2 Delivery
a) Delivery Deadlines
Delivery deadlines are contractually agreed in each individual case. If the contract does not state a delivery deadline, then three (3) months after the order confirmation date we have the right to request acceptance of the goods within 14 days. If this deadline is not met, we can elect to demand acceptance, withdraw from the contract, or claim damages.
b) Partial Deliveries
Galaxis Showtechnik GmbH is entitled to make partial deliveries if this is reasonable for the customer. In the event of partial deliveries, the customer shall not be liable for any additional shipping costs.
c) Delays in Delivery and Performance
Galaxis Showtechnik GmbH is not responsible for delays in delivery and performance due to force majeure, or due to extraordinary and unforeseeable events which cannot be prevented even with the greatest possible care by Galaxis Showtechnik GmbH (in particular, these include strikes, administrative or judicial orders, and cases of incorrect or improper deliveries from suppliers despite arrangements to cover requirements). These entitle Galaxis Showtechnik GmbH to delay delivery by the duration of the event preventing delivery. If shipping is delayed due to a circumstance for which the buyer is responsible, Galaxis Showtechnik GmbH agrees to insure the goods stored at Galaxis Showtechnik GmbH upon express written request and at the expense of the customer according to the particulars provided by the customer.
d) Withdrawal
In the event of non-availability for the aforementioned reasons, Galaxis Showtechnik GmbH can withdraw from the contract. Galaxis Showtechnik GmbH agrees to inform the customer immediately about the non-availability and to refund any consideration already paid without delay.
e) Shipping Insurance
Upon request by the customer, shipping insurance can be arranged. Galaxis Showtechnik GmbH reserves the right to arrange and bill for such shipping insurance if Galaxis Showtechnik GmbH deems this to be prudent or necessary under the given circumstances after discussion with the customer. The customer will be notified separately about the insurance during contractual negotiations.
f) Express Delivery
If the customer specifically requests express delivery, the customer shall bear the additional costs incurred.
g) Postage-paid Delivery
In the case of postage-paid delivery, Galaxis Showtechnik GmbH is responsible for selecting the shipping company.
h) Delay in Acceptance
If there is a delay in the customer’s acceptance of the ordered goods, Galaxis Showtechnik GmbH is entitled, after stipulating a reasonable grace period, to withdraw from the contract and claim damages for reasons of delay or non-performance. During the period of delay in acceptance, the customer bears the risk of accidental loss or accidental deterioration.
§ 3 Payment
a) Prices and Shipping Costs
VAT is added to all prices. Also added are the separately listed packaging and shipping costs as long as no agreement was made for the customer to pick up the goods at the place of business of Galaxis Showtechnik GmbH in Neuötting. Invoice amounts less than €100 (net) are due immediately.
b) Payments in Arrears
The customer is in arrears on payments if the payment does not arrive at Galaxis Showtechnik GmbH within two (2) weeks after receipt of the invoice. Interest totaling 8 percentage points over the base interest rate of the European Central Bank is added to payments in arrears. If the customer is in arrears on payments, Galaxis Showtechnik GmbH reserves the right to bill the customer an overdue fee of €10 and retains the right to claim additional damages.
The customer still has the opportunity to prove that Galaxis Showtechnik GmbH suffered a lesser loss or none at all.
c) Right of Retention
The customer is entitled to claim a right of retention only for such counterclaims as are due and are based on the same legal relationship as the customer’s obligation.
d) Sufficient Credit Standing
Galaxis Showtechnik GmbH agrees to fulfill obligations undertaken only if the buyers’ credit standing has been shown to be sufficient. Delivery can be made contingent upon the prior furnishing of collateral or pre-payment of the purchase price, if necessary. If the customer’s financial circumstances deteriorate substantially, or if this becomes known after the fact, Galaxis Showtechnik GmbH can request immediate payment. Galaxis Showtechnik GmbH additionally has the right to withdraw from the contract.
e) SEPA Payments and Pre-Notification
Invoices may be settled using SEPA direct debits. To do so, the buyer must issue Galaxis Showtechnik GmbH a corresponding mandate (SEPA Direct Debit Core or, if possible, SEPA Direct Debit B2B mandate). If invoices for goods and services are paid using the SEPA Direct Debit Core/Direct Debit B2B methods, the customer will receive pre-notification of the direct debit. The pre-notification period is shortened to one (1) day for SEPA B2B direct debits. In the case of CORE, or standard direct debits, the period is shortened to five (5) days for first direct debits (FRST)/single direct debits (OOFF) and to two (2) days for recurring direct debits (RCUR). The customer represents and warrants that it will ensure sufficient funds in its account. The buyer shall bear the costs arising from rejection or reversal of the direct debit as long as the rejection or reversal was not caused by Galaxis Showtechnik GmbH.
§ 4 Customer Responsibilities
a) Content of the Customer Order
The customer is solely responsible for the content and correctness of the data and information transmitted in a customer order.
b) Representations and Warranties
The customer represents and warrants that it possesses the required expertise to use the goods and during use shall adhere to the safety guidelines provided by Galaxis Showtechnik GmbH (these can be inspected by the customer at http://www.firing-system.com/pdf/Safety_regulations_english.pdf). The customer shall hold Galaxis Showtechnik GmbH harmless from all claims due to non-compliance with the safety guidelines for products, briefings, and operating instructions arising at the client or third parties, or asserted against Galaxis Showtechnik GmbH. This also includes the reimbursement of expenses for necessary legal representation.
c) Cost of Returns
Galaxis Showtechnik GmbH accepts returns of goods from customers after an agreement to this end is reached. However, Galaxis Showtechnik GmbH bills a flat fee for this amounting to 10% of the net invoice amount. The customer shall bear the costs of shipping back the goods. Statutory warranty rights remain unaffected by the preceding provision. There is no obligation to bear the return costs if the customer exercises its rights arising from product defects. Returns of rented equipment are governed by the return provisions in section 5 of these Terms of Business.
§ 5 Rental Service
a) Provision for Rental
aa) Provision of Replacements
If the rental equipment reserved cannot made available at the time of handover, Galaxis Showtechnik GmbH reserves the right to provide comparable rental equipment if this is reasonable for the renter.
bb) Delays in Provision
Galaxis Showtechnik GmbH is not responsible for delays in provision due to force majeure, or due to extraordinary and unforeseeable events which cannot be prevented even with the greatest possible care by Galaxis Showtechnik GmbH (in particular, these include strikes, administrative or judicial orders, and cases of incorrect or improper deliveries from suppliers despite arrangements to cover requirements). These entitle Galaxis Showtechnik GmbH to delay provision by the duration of the event preventing delivery.
cc) Withdrawal
In the event of non-availability for the aforementioned reasons, Galaxis Showtechnik GmbH can withdraw from the contract. Galaxis Showtechnik GmbH agrees to inform the renter immediately about the non-availability and to refund any consideration already paid without delay.
b) Handover and Return
aa) Handover
The rental equipment can be received/returned
at the agreed time in each case at the place of business of Galaxis Showtechnik GmbH. Handover and return can also be effected by shipping. Upon request, Galaxis Showtechnik GmbH will hand over the rental equipment by shipping it via a suitable shipping company of its choice to the address specified by the customer. If the rental equipment is shipped, the customer shall bear the cost of the shipping both ways.
bb) Transfer of Risk
The transfer of risk occurs when the rental equipment is handed over. In cases where Galaxis Showtechnik GmbH ships the rental equipment to the customer upon request by the customer, the risk of deterioration and accidental loss transfers upon handover to the person designated to transport the equipment. When the equipment is shipped back to Galaxis Showtechnik GmbH by the shipping company, the risk of deterioration and accidental loss does not transfer until handover to Galaxis Showtechnik GmbH by the designated transport person.
cc) Delayed Return
It is hereby expressly stated that the provisions of Section 545 of the German Civil Code are not applicable.
If the renter does not return the rental equipment to Galaxis Showtechnik GmbH at the agreed time or at all after expiration of the agreed period of use, Galaxis Showtechnik GmbH is entitled to request a usage fee in the amount of the agreed rental fee for the period the equipment is kept exceeding the contract period. Claims for additional damages by Galaxis Showtechnik GmbH remain unaffected by the preceding provision. Extending the rental period is possible only with the express written permission of Galaxis Showtechnik GmbH. The right to use the rental equipment extends only to the agreed period of use. As a rule, continued use of the equipment after expiration of the rental period will not result in an extension of the rental contract, even absent an express objection by Galaxis Showtechnik GmbH.
If the renter does not fulfill its return obligation even after a further express return request, or if the renter is not reachable by Galaxis Showtechnik GmbH, Galaxis Showtechnik GmbH reserves the right to file criminal charges. The expenses arising as a result shall be borne by the renter, unless the renter is not responsible for violating the obligation to return the equipment.
dd) Early Return
Returning the rental equipment prior to the end of the agreed rental period will not result in a reduction in the agreed rental fee unless the rental equipment can be otherwise rented out.
ee) Term
All rental contracts are entered into for a specific term by individual agreement. The right to extraordinary termination for good cause remains unaffected by the preceding provision.
c) Renter Liability
aa) Proper Handling
The rental equipment must be handled carefully and appropriately and must be operated properly and in accordance with instructions. In particular, the renter must follow the operating instructions included with the rental equipment or accessible at any time online along with the safety guidelines included therein.
bb) Scope of Liability during the Agreed Period of Use and after Expiration of the Agreed Period of Use
The renter shall be liable for any damage exceeding standard use or wear and tear insofar as the renter is responsible for such damage.
§ 6 Retention of Title
a) General
The goods, works, and materials delivered by Galaxis Showtechnik GmbH remain the property of Galaxis Showtechnik GmbH until the complete settlement of all current and future claims arising from the business relationship. The customer shall treat with care at all times items subject to the retention of title. The customer shall assign to Galaxis Showtechnik GmbH any claim or replacement that the customer receives for damage to, or destruction or loss of these items. The customer is not entitled to sell, give away, pledge, or assign as collateral the objects delivered to the customer under retention of title. Processing the goods does not give the customer any ownership of the new item until settlement of our claims. When mixing, connecting, or processing the goods with other objects, the buyer thereby already assigns to us the buyer’s ownership or co-ownership rights to the mixed inventory or to the new object.
b) Attachment and Other Impairments
If the item subject to retention of title is attached or otherwise impaired by third parties, the customer shall notify Galaxis Showtechnik GmbH immediately so that a lawsuit can be filed in accordance with Section 771 of the German Code of Civil Procedure (Zivilprozeßordnung – ZPO). To the extent that the third party is not in the position to reimburse the court and out-of-court costs of a lawsuit in accordance with Section 771 of the German Code of Civil Procedure, the customer shall be liable for the loss incurred by Galaxis Showtechnik GmbH.
c) Repossession
In the event of actions by the customer in violation of the contract, particularly defaulting on payment, and in the event that insolvency proceedings are initiated with respect to the customer’s assets, Galaxis Showtechnik GmbH is entitled to repossess the item. In this case, repossession of the item does not constitute withdrawal from the contract, unless Galaxis Showtechnik GmbH declares this expressly in writing.
d) Release of Collateral
If the value of the collateral exceeds the value of the claims secured by more than 10%, Galaxis Showtechnik GmbH is obligated to release the collateral upon request by the customer.
§ 7 Warranty
a) Warranty Claim
The law provides for warranty rights. A warranty claim can arise only with regard to the quality of the goods; reasonable deviations in the aesthetic characteristics of the goods are not subject to warranty claims. Measurement, weight, and performance information as well as images are only approximate and non-binding unless expressly designated.
b) Rights in the Event of Insignificant Defects
In the event of an insignificant defect, the customer only has the right to an appropriate reduction of the purchase price; the right to withdraw is excluded.
c) Damages for Defects
No warranty is provided for damage resulting from improper handling or use of the goods. Galaxis Showtechnik GmbH will pay damages for defective goods only in cases of intent or gross negligence. This exclusion does not relate to liability for damage arising from injury to life, limb, or health. The provisions of the Product Liability Act (Produkthaftungsgesetz) remain unaffected by this exclusion of liability.
d) Warranty
In the event of a defect, Galaxis Showtechnik GmbH shall have the right to supplementary performance of its choice, either correcting the defect or shipping a replacement. The risk of accidental loss or deterioration of the item transfers upon handover to the person designated to transport the item. Warranty claims expire in two (2) years after the transfer of risk so determined.
e) Obligation to Report Defects
Customers must report apparent defects in writing immediately, or they will be excluded from asserting warranty claims. Timely sending of the notification is sufficient to meet deadline requirements. The customer carries the full burden of proof for all eligibility requirements for the claim, particularly for proving the defect itself, the time of identification of the defect, and the timely reporting of the defect. Provided the conditions are met, the provisions of Section 377 of the German Commercial Code (Handelsgesetzbuch – HGB) apply.
f) Voluntary Repossession
Galaxis Showtechnik GmbH will take goods back voluntarily even after expiration of the warranty period stipulated in section 7 d of the Terms of Business. In this case, Galaxis Showtechnik GmbH reserves the right to charge a flat return fee as in section 4 of the Terms of Business. The customer shall bear the return shipping costs in the event of voluntary repossession.
§ 8 Liability
a) Product Safety Guidelines
Galaxis Showtechnik GmbH always instructs its customers in writing about the safety guidelines pertaining to the products by providing customers with operating instructions. The operating instructions contain all of the necessary safety guidelines. Customers can also inspect the current version of the operating instructions including the safety guidelines at any time on the Galaxis Showtechnik GmbH website. Liability by Galaxis Showtechnik GmbH for damage arising due to disregard by the user for general safety guidelines or safety guidelines customary in the pyrotechnics industry, or due to disregard by the user for the information given in the operating instructions and safety guidelines is covered by the exclusion of liability in accordance with section 7 b of these Terms of Business.
b) Exclusion of Liability
Galaxis Showtechnik GmbH and its legal representatives and vicarious agents (Erfüllungsgehilfen) shall be liable only where damage is caused intentionally subject to the following reservation. In the event of gross or ordinary negligence, liability only extends to the violation of material contractual obligations, as well as obligations whose performance is especially important for fulfilling the contract purpose. Liability is thereby limited to foreseeable, contractually typical, direct, average losses.
c) Reservation of Liability
The above exclusion of liability does not apply to liability for damage arising from injury to life, limb, or health. The provisions of the Product Liability Act (Produkthaftungsgesetz) remain unaffected by the exclusion of liability.
§ 9 Final Provisions
a) Place of Jurisdiction
The exclusive place of jurisdiction for all legal disputes arising from this contract is agreed to be the place of business of Galaxis Showtechnik GmbH insofar as the customer is a businessperson, a legal entity under public law, or a special fund under public law, or insofar as the customer has no venue in the Federal Republic of Germany.
b) Choice of Law
Unless stipulated otherwise by the applicable statutory provisions of the national law of the customer’s country, German law applies, and the United Nations Convention on Contracts for the International Sale of Goods is excluded.
c) Privacy Notice
Our data protection rules are always applicable. Galaxis Showtechnik GmbH hereby expressly states that the following contract data is transmitted for purposes of verifying credit standing to Bürgel Wirtschaftsinformationen GmbH & Co. KG, Postfach 500 166, 22701 Hamburg, Germany: customer’s last name, first name, date of birth, street address, city/postal code.
d) Severability
The ineffectiveness of individual provisions does not affect the validity of the remaining Terms of Business.