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General terms and conditions

The General Business Terms apply to the business relationship between “UIG” and Vendee. The definitions of the Agreement shall also apply for the General Business Terms.

§ 1. General
1.1 For avoidance of doubt it is clarified, that Vendee shall not, either directly or indirectly, hire or rent the Product to members of the public. Furthermore, Vendee shall not itself or through others produce copies of the Products in any medium.
1.3 Without further obligation to Vendee of any kind whatsoever, UIG reserves the right in its sole discretion at any time to (i) discontinue the production, distribution or manufacturing of any Product; (ii) change the content, design or specifications of any Product and any part thereof; and (iii) change its service, warranty or other policies regarding any Product.

§ 2. Orders
2.1 Vendee shall be responsible for: (a) ensuring the accuracy of the terms of the order submitted by the Vendee (b) providing UIG with any information which is necessary in order to enable the UIG to comply with all labelling, marketing and other applicable requirements in the Territory; and (c) obtaining any necessary import licenses, certificates of origin or other requisite documents, and paying all applicable customs, duties and taxes in respect of the importation of the Products into the Territory and their resale in the Territory.
2.2 No order which has been accepted by the UIG may be cancelled by the Vendee except with the written agreement of the UIG and on terms that the Vendee shall indemnify in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges, and expenses incurred by the UIG as a result of cancellation.
2.3 The Product will be delivered in UIG’s packaging for the Product which shall not be altered in any way by the Vendee, or otherwise repackaged, without the written consent of UIG.

§ 3. Shipment and Buy Price and Marketing
3.1 All the shipment costs shall be borne by the manufacturer determined by the UIG or by Vendee.
3.2 Without prejudice to anything herein, the Buy Price is exclusive of any applicable value added or other sales tax, which the Vendee pursuant to applicable law shall be additionally liable to pay to UIG.
3.3 All payments under this Agreement shall be made by the Vendee without any deduction in the currency of Euro by bank transfer to UIG´s bank account. UIG shall at no time be obliged to deliver or hold the Products ready before UIG has received in cash or cleared funds payment of the first 50% of the payment installments.
3.4 Risk of damage to or loss of the Products ordered by Vendee pursuant to the Agreement, shall pass to Vendee:
3.4.1 in the case of Products to be delivered at the UIG’s designated distribution centre, at the time when the UIG issues the collection notification; or
3.4.2 in the case that the parties explicitly agree otherwise than stated in § 3.3.1 and the Products shall be delivered otherwise than at the UIG’s designated distribution centre at the time of delivery, or if the Vendee wrongfully fails to take delivery of the Products at the time when the UIG has attempted to tender delivery of the Products
3.5 Notwithstanding delivery and the passing of risk in the Products, or any other provision of the Agreement, the title in the Products shall not pass to the Vendee until UIG has received in cash or cleared funds payment in full of the Buy Price of the Product and for all other goods sold by the UIG to the Vendee for which payment is then due.
3.6 If the Vendee fails to collect the Product otherwise than by reason of UIG’s fault then, without prejudice to any other right or remedy available to the UIG, the UIG may at his sole discretion: (a) store the Product until actual collection and charge the Vendee for the reasonable costs (including insurance) of storage; or (b) sell the Product at the best price readily available and (after deducting all reasonable storage and selling expenses) account to the Vendee for the excess over the Buy Price or charge the Vendee for any shortfall below the Price.

3.7 Marketing, Advertising and Promotion

3.7.1 Subject to third party rights and the prior written approval of UIG of all advertising and promotional matter proposed to be used in respect of the Product, UIG grants to Vendee the non-exclusive right in respect of the Product during the Term and in the Territory to use and reproduce extracts from the Product, together with associated artwork, logos and trademarks, in the advertising and promotion of the Product including, without limitation, the creation of television, radio and printed advertising.
3.7.2 UIG undertakes to supply to Vendee at cost price a copy of the artwork (in such format as shall be agreed) used by UIG in previous marketing (if any) of the Product.
3.7.3 In connection with the promotion and marketing of the Product, Vendee shall: make clear, in all dealings with customers and prospective customers, that he is acting as Vendee of the Product and not as agent of UIG; provide to UIG copies of its up to date price lists on a regular basis; at the request of UIG provide to it copies of such sales aids, including (without limiting the foregoing) catalogues, sales brochures and sales manuals, as relate to the Products; from the Delivery Date in each country of the Territory, until 6 (six) months after the date of expiry or termination of this Agreement (howsoever occasioned) provide a helpdesk at Vendee's cost and expense in the Territory to provide general assistance to, and answer queries from end-users of the Product in the languages of the distributed Merchandise. The helpdesk must provide e-mail and telephone response to end-users and operate in accordance with generally accepted industry standards.
3.7.4 All marketing materials are to be submitted to UIG for his prior approval. UIG will endeavour to give his approval within five working days of receipt of the materials. Before making any announcement or press release relating to the Product, Vendee shall consult with UIG on the timing and wording of any such announcement and Vendee will not make any such announcement unless and until the timing and wording has been approved by UIG.

4.1 UIG does not give any, explicit or implied, warranty or guarantee to the extent that mandatory law does not provide otherwise. UIG explicitly does not warrant or guarantee that the Product will be error-free.
4.2 To the extent that mandatory law does not provide for differently, UIG is only liable for flagrant gross negligence and intent.
4.3 The parties warrant and represent that their respective representatives signing this Agreement have full power and authority to sign the Agreement and to bind the parties.
4.4 Where there is an error in the computer software program for the Product which materially affects the playability of the Product by the end-user, where the end-user returns the Product to the Vendee within two years from buying, UIG will at its option either (a) create and deliver within a reasonable time, at UIG's cost, a patch for the particular error which can be downloaded via the internet, or (b) replace the defective Product free of charge at the place of original delivery within a reasonable period, or (c) refund the Vendee an amount equal to the Buy Price for the returned defective Product, but shall otherwise have no other or further liability or obligation to the Vendee in respect thereof.
4.5 UIG shall be entitled to require the Vendee by notice to immediately cease the sale and distribution of the Product in respect of which a defect has come to the attention of the UIG (a "Cease Distribution Notice"). If the Vendee continues to sell or distribute the Product after the issue of a Cease Distribution Notice, UIG shall not be liable to exchange or refund the Buy Price of the defective Product, nor for any damages or losses suffered by the Vendee as a result of the continued distribution of such defective Product.
4.6 In any case, the entire liability of UIG in relation to a Product under or in connection with this Agreement shall not exceed the Buy Price of the Product, except as expressly provided in this Agreement. However, Vendee shall not be entitled to claim any damages against UIG for loss of bargain or opportunity as a result of the failure by UIG to release a Product by any planned release date, or at all. This § 4.8 shall not apply to claims made under the Product Liability Act.

The Vendee shall indemnify and keep fully indemnified UIG from and against any and all actions, claims, proceedings, damages, liabilities, awards, costs (including, without limitation, the legal costs of the UIG for its attorneys) and losses whatsoever which the UIG may suffer or be required to pay directly or indirectly as a result of any breach or non-performance by the Vendee of any of the Vendee's undertakings, warranties or obligations under this Agreement.

The failure of either party to exercise or enforce any right conferred upon it by this Agreement may not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

§ 7 Duties and Taxes
All prices shown in this Agreement are exclusive VAT. Any duties and taxes which may be incurred with respect to the conclusion, performance, expiration or termination of this Agreement shall be borne by VENDEE, except the taxes on the income of UIG.

This Agreement constitutes the entire agreement between the parties hereto in respect of the subject matter hereof and no terms, obligations, representations, promises or conditions, oral or written, express or implied, have been made or relied upon other than those contained herein. For the avoidance of doubt each party irrevocably waives any right it may have to seek a remedy for any misrepresentation which has not become a term of this Agreement (except for a fraudulent misrepresentation), and any breach of warranty or undertaking (other than those contained in this Agreement) whether express or implied, statutory or otherwise, unless such misrepresentation, warranty or undertaking was made fraudulently. The use of Standard Terms and Conditions, other than this General Business Terms, is expressly ruled out by both parties.

§ 9 Invalid Provisions
Should any of the provisions of this Agreement be or become invalid, illegal or unenforceable in whole or in part, the other provisions shall not in any way be affected or impaired. The invalid provision shall, according to the intent and purpose of this Agreement, be deemed to be replaced by such valid provision, which in its economic effect comes as close as legally possible to that of the invalid provision. The same shall apply in case of any omission.

§ 10 Factoring
Invoices will be factored by Supplier. If the factoring credit limit of the distributor is fully used up distributor has to pay goods upfront until the factoring credit limit is reduced and available again by the agreed payment terms. We herewith confirm that the accounts receivable exactly specified in the factor's attached statement of accounts receivable have been sold and assigned to the factor together with all related rights and securities. The factor shall be entitled to dispose of these accounts receivable freely and without our participation. Particularly the factor shall be entitled to collect the above mentioned receivables.

§ 11 Governing Law
The Agreement shall be governed by, and construed in accordance with the laws of Germany. The UN Sales Convention (CISG) shall be excluded. VENDEE irrevocably agrees with UIG for its exclusive benefit that the courts of Germany shall have jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and that accordingly any suit, action or proceeding arising out of or in connection with this Agreement may be brought in such courts (which have competent jurisdiction for UIG). Nothing in this Clause shall limit the right of UIG to take Proceedings against VENDEE in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not (unless precluded by applicable law).
UIG - United Independent Entertainment GmbH