GTC

PIEGA SA, Bahnhofstrasse 29, CH-8810 Horgen, represented by Manuel Greiner and Alexander Greiner, Company Registration No.: CH-020-3920191-0

I. Scope, Form

1. The following General Terms and Conditions (GTC) apply only to business customers, i.e. to natural or legal persons or partnerships with legal capacity who, when entering into a legal transaction, are acting in the course of their commercial or self-employed professional activities, as well as to legal persons governed by public law and special funds under public law.

2. These GTC apply to all contracts between PIEGA SA (“Seller”) and its trading partners (“Buyer”), as well as to all contracts in which PIEGA SA acts as the buyer. They apply in particular to contracts for the sale and/or delivery of movable goods, in particular loudspeakers, amplifiers and network players (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers. They also apply to orders for goods and services procured by PIEGA SA. Unless otherwise agreed, the Terms and Conditions in the version valid at the time of the order or, in any event, in the version last communicated in writing, shall also apply to similar future contracts without the need to refer to them again in each individual case.

3. These General Terms and Conditions apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the contracting party shall only form part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in all cases, for example even if the contracting party refers to its own general terms and conditions in the context of the order and we do not expressly object to this. These terms and conditions shall be deemed to have been accepted at the latest upon unconditional acceptance of the goods or services.

4. Individual agreements, e.g. in framework agreements and details set out in our order confirmation, shall take precedence over these General Terms and Conditions. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC), in the version valid at the time the contract is concluded.

5. Any legally relevant declarations or notices from the contracting party in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction of the purchase price) must be made in writing. For the purposes of these General Terms and Conditions, ‘in writing’ includes written and text form (e.g. letter, email). Statutory formal requirements and further evidence, in particular where there is doubt as to the legitimacy of the person making the declaration, remain unaffected.

6. References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions therefore apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions.

II. Conclusion of Contract

1. Our quotations are subject to change and non-binding until they form part of a contractual agreement. This also applies if we have provided the contracting party with catalogues, technical documentation (e.g. drawings, plans, calculations), other product descriptions or documents – including in electronic form – to which we reserve ownership rights and copyright.

2. The ordering of goods or services by the contracting party shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt by us.

3. Our acceptance of the offer may be declared either in writing (see Section I. 5), e.g. by means of an order confirmation, or by delivery of the goods to the contracting party.

III. Delivery and Delays in Delivery

1. Binding delivery dates and delivery or performance deadlines must be agreed in writing. The validity of any individual verbal agreement remains unaffected.

2. Compliance with a delivery obligation is conditional upon the timely and proper fulfilment of the buyer’s obligations to cooperate, 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 same extent that the buyer is in default with its obligations to cooperate, any agreed deadlines and dates shall also be postponed – without prejudice to PIEGA SA’s rights arising from such default.

3. A delivery period or delivery date shall be deemed to have been met if the delivery item has been made available for collection or dispatch, dispatched or collected before the expiry of the period or before the agreed delivery date.

4. Operational disruptions – whether at PIEGA SA or at a supplier – arising in particular from strikes, lawful lockouts, war, civil unrest, natural disasters, epidemics, pandemics and all other cases of force majeure, and which affect delivery and performance obligations, do not entitle the party concerned to terminate the contractual relationship. In such cases, the delivery or performance period shall be extended or a delivery date postponed in accordance with the duration of the disruption, taking into account a reasonable start-up period.

5. If we are unable to meet binding delivery deadlines for reasons beyond our control (unavailability of the service), we will inform the contracting party of this without delay and, at the same time, notify them of the expected new delivery deadline.

6. We reserve the right to withdraw from the contract in cases where we ourselves are not supplied correctly and on time, provided that we are not responsible for this failure to supply. In such cases, we will inform the contracting party of the unavailability without delay and any advance payment already made will be refunded immediately.

7. The occurrence of a delay in delivery on our part shall be determined in accordance with the statutory provisions. In any event, however, a reminder from the contracting party is required.

8. The rights of the contracting party pursuant to Section VIII of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

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

1. Delivery is made ex our dispatch warehouse, which is also the place of performance for the delivery and any subsequent performance. The goods shall be dispatched to another destination at the contracting party’s expense (“sale by delivery”). Unless otherwise agreed, we are entitled to determine the method of dispatch (in particular the carrier, route of dispatch and packaging) ourselves.

2. The risk of accidental loss and accidental deterioration of the goods shall pass to the contracting party at the latest upon handover. In the case of a sale by delivery, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the contracting party as soon as the goods are handed over to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. In the event of the buyer’s breach of contract, in particular in the event of default in acceptance or default in payment, we shall be entitled to claim compensation for the damage incurred as a result, including any additional expenses. We reserve the right to assert further claims or rights.

V. Prices and Terms of Payment

1. Unless otherwise agreed on a case-by-case basis, the prices set out in the current price list shall apply. All prices are net prices and are exclusive of applicable statutory taxes and duties, as well as any shipping, transport and insurance costs.

2. In the case of sale by delivery (IV. 1), the buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the buyer. The amount of the shipping costs is set out in the relevant quotation. The buyer shall also bear any customs duties, fees, taxes and other public levies.

3. The purchase price is due and payable within 14 days of the invoice date and delivery of the goods. However, we are entitled at any time, even within the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest upon confirmation of the order.

4. The buyer shall be in default upon expiry of the above payment period. During the period of default, interest shall be payable on the purchase price at the statutory rate applicable at the time. We reserve the right to claim further damages arising from the default. Our entitlement to commercial interest on overdue payments (Section 353 of the German Commercial Code (HGB)) remains unaffected in dealings with merchants.

5. The buyer shall only be entitled to rights of set-off or retention to the extent that their claim has been legally established or is undisputed. In the event of defects in the delivered goods, the buyer’s rights, in particular those under Section VII(6) of these General Terms and Conditions, remain unaffected.

6. If, after conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is at risk due to the buyer’s inability to pay, we shall be entitled, in accordance with the statutory provisions, to refuse performance and – where applicable, after setting a deadline – to withdraw from the contract (Section 321 of the German Civil Code (BGB)).

VI. Retention of title

1. We retain title to the goods sold until all our current and future claims arising from the sales contract and any ongoing business relationship (secured claims) have been paid in full.

2. The goods subject to retention of title may not be pledged to third parties or transferred as security until the secured claims have been paid in full. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. through attachment) seek to seize the goods belonging to us.

3. In the event of the buyer’s breach of contract, in particular non-payment of the purchase price due, we shall be entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not simultaneously constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods and to reserve the right to withdraw from the contract. If the buyer fails to pay the purchase price due, we may only exercise these rights if we have previously set the buyer a reasonable deadline for payment without success, or if setting such a deadline is dispensable under the statutory provisions.

4. Unless otherwise specified in (c) below, the buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a) The retention of title extends to the products created by processing, mixing or combining our goods to their full value, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing or combining with goods belonging to third parties, their right of ownership remains in force, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
b) The buyer hereby assigns to us, by way of security, all claims against third parties arising from the resale of the goods or the product, either in full or in the amount of our share of co-ownership in accordance with the preceding paragraph. We accept the assignment. The buyer’s obligations set out in clause 2 shall also apply in respect of the assigned claims.
c) The buyer remains authorised, alongside us, to collect the claim. We undertake not to collect the claim so long as the buyer meets their payment obligations to us, there is no indication of any inability to pay, and we do not assert the retention of title by exercising a right in accordance with clause 3. Should this, however, be the case, we may demand that the buyer discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. Furthermore, in this case, we shall be entitled to revoke the buyer’s authority to resell and process the goods subject to retention of title.
d) If the realisable value of the security exceeds our claims by more than 10%, we shall, at the buyer’s request, release security at our discretion.

VII. The Buyer’s Claims for Defects, Duty to Give Notice of Defects

1. Unless otherwise specified below, the statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect or incomplete delivery, as well as improper assembly/installation or defective instructions). In all cases, the statutory provisions governing the sale of consumer goods (Sections 474 et seq. of the German Civil Code (BGB)) and the buyer’s rights arising from separately issued guarantees, in particular those provided by the manufacturer, remain unaffected.

2. Our liability for defects is based primarily on the agreement reached regarding the quality and intended use of the goods (including accessories and instructions). In this context, all product descriptions and manufacturer’s specifications that form part of the individual contract or were publicly disclosed by us (in particular in catalogues or on our website) at the time the contract was concluded shall be deemed to constitute an agreement on quality.

3. In the case of goods containing digital elements or other digital content, we are only obliged to provide and, where applicable, update the digital content to the extent that this is expressly stipulated in an agreement regarding the quality of the goods. We accept no liability in this regard for public statements made by the manufacturer or other third parties.

4. We shall generally not be liable for defects of which the buyer is aware at the time of conclusion of the contract or of which the buyer is unaware due to gross negligence (Section 442 of the German Civil Code (BGB)). Furthermore, the buyer’s claims for defects are subject to the buyer having fulfilled their statutory obligations to inspect and give notice (Sections 377, 381 of the German Commercial Code (HGB)).

5. The buyer must carefully inspect the delivered goods for completeness and defects immediately upon arrival. Any obvious defects must be reported to us immediately upon acceptance of the delivery, but at the latest within a period of 14 days from receipt of the goods. In the event of the discovery of non-obvious defects, the obligation to give notice of defects without delay applies at the latest within 14 days of the discovery of the defect. Otherwise, the goods shall be deemed to have been accepted, even in view of the respective defect.

6. If the goods delivered are defective, we may initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering goods free from defects (replacement). If the method of subsequent performance chosen by us is unreasonable for the buyer in the specific case, they may refuse it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.

7. We are entitled to make the subsequent performance owed conditional upon the buyer paying the purchase price due. However, the buyer is entitled to withhold a portion of the purchase price proportionate to the defect.

8. The buyer must give us the time and opportunity required for the remedial action owed, in particular to hand over the goods subject to complaint for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us at our request in accordance with the statutory provisions; however, the buyer has no right of return.

9. We shall bear or reimburse the costs necessary for the purposes of inspection and rectification, in particular transport, travel, labour and material costs, as well as any removal and reinstallation costs, in accordance with the statutory provisions and these General Terms and Conditions, provided that a defect actually exists. Otherwise, we may demand reimbursement from the buyer for the costs incurred as a result of the unjustified request for rectification of the defect, if the buyer knew or could have recognised that no defect actually existed.

10. In urgent cases, e.g. where operational safety is at risk or to prevent disproportionate damage, the buyer has the right to remedy the defect themselves and to demand reimbursement from us for the expenses objectively necessary for this. We must be notified of such self-remedy without delay, if possible in advance. The right to remedy the defect oneself does not apply if we would be entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.

11. If a reasonable period set by the buyer for subsequent performance has expired without result or is dispensable under the statutory provisions, the buyer may, in accordance with the statutory provisions, withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.

12. Claims by the buyer for reimbursement of expenses pursuant to Section 445a(1) of the German Civil Code (BGB) are excluded, unless the final contract in the supply chain is a sale of consumer goods (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c(2), 327(5), 327u BGB). Claims by the buyer for damages or reimbursement of futile expenses (Section 284 BGB) shall, even in the event of defects in the goods, only arise in accordance with the provisions of Sections VIII and IX below.

VIII. Other Liability

1. Unless otherwise provided for in these General Terms and Conditions, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.

2. We shall be liable for damages – irrespective of the legal basis – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, subject to statutory limitations of liability (e.g. due care in our own affairs; minor breach of duty), we shall only be liable:
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from a breach of a material contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and is entitled to rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

3. The limitations of liability arising from clause 2 shall also apply in relation to third parties and in the event of breaches of duty by persons (including for their benefit) for whose fault we are liable under statutory provisions. They shall not apply where a defect has been fraudulently concealed or a guarantee has been given as to the quality of the goods, nor shall they apply to claims by the buyer under the Product Liability Act.

4. In the event of a breach of duty that does not consist of a defect, the buyer may only withdraw from the contract or terminate it if we are responsible for the breach of duty. Any right of the buyer to terminate the contract at will (in particular pursuant to Sections 650 and 648 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

IX. Limitation Period

1. Notwithstanding Section 438(1)(3) of the German Civil Code (BGB), the statutory warranty claims shall apply to the delivery of new goods, provided that the warranty is limited to defects that arise within one year of the start of the limitation period (period of liability). The period for exercising the relevant rights (limitation period) remains unaffected.

2. The above limitation periods under sales law also apply to the buyer’s contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the standard statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in individual cases.

X. Governing Law and Jurisdiction

1. These General Terms and Conditions and the contractual relationship between us and the contracting party shall be governed by Swiss law, to the exclusion of any uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods.

2. If the contracting party is a trader, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Horgen. The same applies if the contracting party is an entrepreneur. 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 General Terms and Conditions or a prior individual agreement, or at the contractual partner’s general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.