ROSE x PIEGA SA

General Terms and Conditions (GTCs)

ROSE x PIEGA SA, Talstrasse 88, CH-8808 Pfäffikon, represented by Young Min Kim, Sungeun Kim, Manuel Greiner and Alexander Greiner Greiner, HR No.: CH-130.3.033.103-5

I. Scope, Form

The following General Terms and Conditions of Sale (GTCS) apply only to entrepreneurs (§ 14 BGB), i.e., to natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity when concluding a legal transaction, as well as legal entities under public law and special funds under public law.
These GTCS apply to all contracts between ROSE x PIEGA SA ("Seller") and its trading partners ("Buyer"). They apply in particular to contracts for the sale and/or delivery of movable items, especially loudspeakers, amplifiers, and network players ("Goods"), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers. Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer's order or at least in the version last communicated to him in text form shall also apply to similar future contracts without the need for us to refer to them again in each individual case.
These GTCS apply exclusively. Deviating, opposing, or supplementary general terms and conditions of the Buyer will only become part of the contract if we have expressly agreed to their validity. This requirement of consent applies in any case, for example, even if the Buyer refers to his general terms and conditions in the context of the order and we do not expressly object to this. At the latest, by accepting the Goods without reservation, these terms are deemed accepted.
Individual agreements, such as in framework agreements and information in our order confirmation, take precedence over the GTCS. Trade clauses are, in case of doubt, to be interpreted according to the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of the conclusion of the contract.
Legally relevant declarations and notifications of the Buyer concerning the contract (e.g., setting deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTCS includes written and text form (e.g., letter, email). Statutory form requirements and further evidence, especially in the event of doubts about the legitimacy of the declarant, remain unaffected.
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCS.

II. Conclusion of Contract

Our offers are subject to change and non-binding until they become part of a contractual agreement. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g., drawings, plans, calculations, cost estimates), other product descriptions, or documents – even in electronic form – which we reserve ownership and copyright rights.
The order of the Goods by the Buyer is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt.
Acceptance of the offer by us can be declared either in writing (see clause I.5), e.g., by order confirmation, or by delivery of the Goods to the Buyer.

III. Delivery Period and Delay in Delivery

Binding delivery dates and delivery or service periods must be agreed upon in writing. An oral individual agreement remains effective.
Compliance with a delivery obligation requires the timely and proper fulfilment of the Buyer's cooperation obligations, in particular the provision of any documents to be procured by the Buyer and the receipt of an agreed deposit or advance payment. To the extent the Buyer is in default with his cooperation obligations, agreed deadlines and dates will be postponed – without prejudice to ROSE x PIEGA's rights arising from the delay – to the same extent as the Buyer is in default with his cooperation obligations.
A delivery period or delivery date is met if the delivery item is provided for collection or shipment before the expiry of the period or the agreed delivery date.
Operational disruptions – both at ROSE x PIEGA's premises and at a supplier's premises – resulting particularly from strikes, lawful lockouts, war, riots, natural disasters, epidemics, pandemics, and all other cases of force majeure affecting the delivery and performance obligations do not entitle the Buyer to terminate the contractual relationship. The delivery or performance period will be extended or a delivery date postponed in this case according to the duration of the disruption, including a reasonable start-up period.
If we cannot meet binding delivery deadlines for reasons beyond our control (unavailability of performance), we will inform the Buyer immediately and at the same time notify the Buyer of the expected new delivery deadline.
We reserve the right to withdraw from the contract if we are not supplied correctly and on time by our suppliers, provided we are not responsible for the non-delivery. In this case, we will inform you immediately about the unavailability and refund any advance payment made without delay.
The occurrence of our delivery delay is determined by the statutory provisions. In any case, however, a reminder from the Buyer is required.
The rights of the Buyer according to VIII. of these GTCS and our statutory rights, especially in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.

IV. Delivery, Transfer of Risk, Acceptance, Default of Acceptance

Delivery is made from our shipping warehouse, which is also the place of performance for the delivery and any supplementary performance. At the Buyer's expense, the Goods will be shipped to another destination ("shipment purchase"). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of shipment purchase, however, the risk of accidental loss and accidental deterioration of the Goods, as well as the risk of delay, passes already upon delivery of the Goods to the carrier, the freight forwarder, or the person or institution otherwise designated to carry out the shipment.

V. Prices and Payment Terms

Unless otherwise agreed individually, the prices of the respective current price list apply. All prices are net prices and are subject to statutory taxes and duties as well as any shipping, transport, and insurance costs.
In the case of shipment purchase (IV.1), the Buyer bears the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. The amount of shipping costs results from the respective offer. The Buyer also bears any customs duties, fees, taxes, and other public charges. Unless otherwise agreed individually, the following applies to deliveries:
For order values below €500 net, we charge a flat shipping fee of €20 for deliveries within the EU and Switzerland. For order values of €500 net and above, delivery within the EU and Switzerland is free of shipping costs.
The purchase price is due and payable within 14 days from the date of the invoice and delivery of the Goods. However, we are also entitled, even within the scope of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation.
Upon expiry of the above payment period, the Buyer is in default. The purchase price is subject to interest at the applicable statutory default interest rate during the default period. We reserve the right to claim further damages caused by default. Our claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
The Buyer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivered Goods, the Buyer's rights remain unaffected, particularly in accordance with VII.6 of these GTCS.
If it becomes apparent after the conclusion of the contract (e.g., by filing for insolvency) that our claim to the purchase price is endangered by the Buyer's lack of solvency, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary, after setting a deadline – to withdraw from the contract (§ 321 BGB).

VI. Retention of Title

Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title to the sold Goods.
The Goods subject to retention of title may neither be pledged to third parties nor transferred as security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g., seizures) access the Goods belonging to us.
In the event of breach of contract by the Buyer, especially in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Goods based on the retention of title. The demand for return does not simultaneously include the declaration of withdrawal; we are rather entitled to demand only the return of the Goods and reserve the right to withdraw. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the Buyer a reasonable deadline for payment or such a deadline is dispensable according to the statutory provisions.
The Buyer is authorized until revoked in accordance with the following (c) to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following supplementary provisions apply.

The retention of title extends to the products resulting from the processing, mixing, or combining of our goods at their full value, with us being regarded as the manufacturer. If the property rights of third parties remain in effect during the processing, mixing, or combining with their goods, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
The claims against third parties arising from the resale of the goods or the product are hereby assigned by the buyer to us as a security, either in their entirety or to the extent of our possible co-ownership share according to the preceding paragraph. We accept the assignment. The obligations of the buyer stated in clause 2 also apply with respect to the assigned claims.
The buyer remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, there is no lack of his performance capability, and we do not assert the retention of title by exercising a right according to clause 3. However, if this is the case, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment. Furthermore, in this case, we are entitled to revoke the buyer’s authority to further sell and process the goods subject to retention of title.
If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the buyer’s request.

VII. Buyer’s Claims for Defects, Obligation to Examine

The buyer's rights in the event of material and legal defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions) shall be governed by the statutory provisions unless otherwise stipulated below. In all cases, the statutory provisions regarding consumer goods purchases (§§ 474 ff. BGB) and the buyer's rights arising from separately issued guarantees, particularly those provided by the manufacturer, shall remain unaffected.
The basis of our liability for defects is primarily the agreement reached on the quality and the intended use of the goods (including accessories and instructions). All product descriptions and manufacturer’s statements that are the subject of the individual contract or were publicly disclosed by us (particularly in catalogues or on our internet homepage) at the time of the contract conclusion shall be deemed to be an agreement on the quality in this sense. If the quality has not been agreed upon, it is to be assessed according to the statutory regulations whether a defect is present or not (§ 434 Para. 3 BGB). Public statements made by the manufacturer or on its behalf, especially in advertising or labelling of the goods, take precedence over statements made by other third parties.
For goods with digital elements or other digital content, we owe the provision and, if necessary, the update of the digital content only to the extent that this explicitly results from a quality agreement according to clause 2. We do not assume any liability for public statements made by the manufacturer or other third parties in this regard.
We are generally not liable for defects that the buyer knew or grossly negligently failed to know at the time of contract conclusion (§ 442 BGB). Furthermore, the buyer's claims for defects presuppose that he has complied with his statutory duties to examine and notify (§§ 377, 381 HGB).
The buyer must inspect the delivered goods promptly upon arrival for completeness and defects. Any obvious defects must be reported to us promptly upon taking over the delivery item, but no later than within a period of 14 days from receipt of the goods. For non-obvious defects, the obligation to give notice promptly applies no later than within 14 days of the discovery of the defect. Otherwise, the goods shall be deemed approved even with regard to the defect. This also applies if the defect only becomes apparent after processing in the case of goods intended for installation, attachment, or installation; in this case, the buyer has no claims, particularly for reimbursement of corresponding costs ("removal and installation costs"). Sending the notice in time is sufficient for the compliance with the time limit.
If the delivered item is defective, we may first choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the buyer in an individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
We are entitled to make the owed subsequent performance dependent on the buyer paying the due purchase price. However, the buyer is entitled to retain a portion of the purchase price that is proportionate to the defect.
The buyer must give us the necessary time and opportunity to carry out the owed subsequent performance, especially handing over the complained goods for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions upon our request; however, the buyer has no claim for return. Subsequent performance neither includes the dismantling, removal, or uninstallation of the defective item nor the reinstallation, attachment, or installation of a defect-free item if we were not originally obligated to provide these services; the buyer's claims for reimbursement of corresponding costs ("removal and installation costs") remain unaffected.
We shall bear or reimburse the necessary expenses for the purpose of inspection and subsequent performance, especially transport, travel, labour, and material costs, as well as any removal and installation costs according to the statutory provisions and these GTCs, provided that a defect actually exists. Otherwise, we can demand reimbursement from the buyer for the costs incurred due to an unjustified request for defect remedy if the buyer knew or could have known that there was actually no defect.
In urgent cases, e.g., if there is a danger to operational safety or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and demand reimbursement of the objectively necessary expenses from us. We must be informed immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
If a reasonable period set by the buyer for subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, there is no right of withdrawal in the case of an insignificant defect.
The buyer's claims for reimbursement of expenses pursuant to § 445a Para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c Sentence 2, 327 Para. 5, 327u BGB). The buyer's claims for damages or reimbursement of futile expenses (§ 284 BGB) also exist in the case of defects only in accordance with the following clauses VIII and IX.

VIII. Other Liability

Unless otherwise provided in these GTCs, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
We shall be liable for damages – irrespective of the legal grounds – in the context of fault-based liability for intent and gross negligence. In the case of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g., care in own affairs; insignificant breach of duty):

a. for damages resulting from injury to life, body, or health,

b. for damages resulting from the breach of a material contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the compliance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
The limitations of liability resulting from clause 2 shall also apply to breaches of duty by or in favour of persons for whose fault we are responsible according to statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.
The buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the buyer (in particular under §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

IX. Limitation Period

Notwithstanding § 438 Para. 1 No. 3 BGB, the statutory warranty claims shall apply to the delivery of new goods with the proviso that the warranty is limited to defects that occur within one year from the start of the limitation period (liability period). The period for exercising these rights (limitation period) remains unaffected.
The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation period in an individual case. Claims for damages by the buyer under clause VIII Para. 2 Sentence 1 and Sentence 2(a) and under the Product Liability Act shall expire exclusively according to the statutory limitation periods.

X. Choice of Law and Jurisdiction

These General Terms and Conditions of Sale (GTCs) and the contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods.
If the buyer is a merchant as defined by the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Horgen. The same applies if the buyer is an entrepreneur as defined by § 14 BGB. However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCs or a prior individual agreement, or at the general place of jurisdiction of the buyer. Priority statutory provisions, particularly those regarding exclusive jurisdictions, remain unaffected.