AGB - Allgemeine Geschäftsbedingungen

1. scope of application and validity

The following general terms and conditions apply exclusively to business transactions with Media Solutions GmbH. These apply bindingly to all present and future customers even without explicit mention. Deviations must be agreed in writing.

2. special tasks and duties of customers

The customer makes sale and delivery of the products to the end customers in his own name, on his own account and at his own risk. The customer is not authorized to act in the name or as a representative of Media Solutions GmbH towards end customers or other third parties and to conclude any transactions and contracts for Media Solutions GmbH.

3. handover of the products and services

3.1 Order

Orders can be placed by telephone or electronically (by e-mail or in the online store). After the customer has placed an order with Media Solutions GmbH, the customer can request an order confirmation from Media Solutions GmbH. The customer must inform Media Solutions GmbH immediately of any discrepancies in the order confirmation.

By placing an order, the customer accepts the GTCs (General Terms and Conditions) of Media Solutions GmbH. The acceptance and execution of orders can be made dependent on a security deposit or advance payment in the amount of the entire or partial purchase price.

3.2 Delivery

3.2.1 Delivery address and delivery

The ordered Products shall be delivered to the Customer's address and shall be acknowledged on the delivery bill by the Customer or a third party designated by the Customer. If no one is found at the delivery address to receive the products, the products will not be delivered and will be taken away again at the customer's expense. In this case, the Customer shall be in default of acceptance. If the customer wishes a delivery without personal handover and receipt, he must inform Media Solutions GmbH in writing in advance and indicate where the products are to be deposited. Media Solutions GmbH assumes no liability for incompleteness, loss or damage of products delivered in this manner.

When placing the order, the customer is obliged to provide all the information that will allow correct and timely delivery. Any subsequent costs incurred due to ambiguities in the order must be borne by the customer. Shipping and delivery are at the expense of the customer, unless otherwise agreed.

3.2.2 Partial delivery

Unless otherwise noted in the customer's order, partial deliveries by Media Solutions GmbH are permissible. Unavoidable events such as force majeure, strikes, etc. entitle Media Solutions GmbH to postpone delivery or, if necessary, to withdraw from the contract.

3.2.3 Means of transport

Media Solutions GmbH chooses the means of transport and the mode of shipment. If the buyer requests otherwise, he bears the additional costs.

3.2.4 Delivery address and delivery

3.2.5 Delivery date and delay

In the absence of any express written assurance to the contrary, the delivery dates stated by Media Solutions GmbH are to be regarded as indicative only. The specification of a delivery date is made to the best of our knowledge, but without guarantee. This applies in particular in the event of delays in delivery, e.g. as a result of supply problems at the manufacturer.

If the delivery is delayed beyond a delivery date expressly confirmed by Media Solutions GmbH, the customer must set Media Solutions GmbH a grace period of at least three weeks in writing. After unused expiration of this period Media Solutions GmbH is in default and the customer is entitled to withdraw from the contract without further ado. This results in a claim for damages on the part of the customer.

In case of delay in delivery or impossibility due to circumstances beyond the control of Media Solutions GmbH, in particular in case of strike, lockout, material failure, transport and plant shutdown at the manufacturer, transport problems, warlike events, etc., Media Solutions GmbH is entitled to withdraw from the contract without compensation.

3.2.6 Default of acceptance

During the period in which the customer is in default of acceptance, Media Solutions GmbH reserves the right to store the products to be delivered or collected at the risk and expense of the customer. For this purpose Media Solutions GmbH can call in a forwarding agency or a warehouse keeper. During this time the customer is obligated to pay Media Solutions GmbH a flat rate of 1% of the purchase price per month as compensation for the storage costs incurred, but at least SFr. 50. If the customer still refuses to accept or pick up the products after a reasonable grace period or declares that he does not want to accept the goods, Media Solutions GmbH can refuse the fulfillment of the contract and claim damages for non-fulfillment. As compensation for damages, Media Solutions GmbH can demand either a flat rate of 25% of the agreed purchase price or the actual damage incurred from the customer in addition to the storage costs.

4. offers and prices

4.1 General

All offers are non-binding. The current prices are published in the online store, price changes and errors excepted.

The prices of the products and services of Media Solutions GmbH are net prices in Swiss francs (CHF), excluding value added tax and ex warehouse Media Solutions GmbH. Additional costs, e.g. costs for packaging and shipping/delivery (freight/transport) are not included in the prices and are charged to the customer, as is the value added tax. We reserve the right of subsequent charging for value added tax not charged. Statutory and regulatory levies (SUISA/SWICO) are not shown separately in every case, but are included in every product subject to levies.

4.2 Price adjustments

The prices of the products as well as the additional costs are generally calculated at the time the order is electronically recorded by Media Solutions GmbH. If the purchase prices for Media Solutions GmbH increase after the customer has ordered products from Media Solutions GmbH, this entitles Media Solutions GmbH to adjust the prices to the customer accordingly.

5. acceptance and testing (DOA)

5.1 Receiving inspection of the delivery

The customer must inspect the goods immediately after delivery or collection. Obvious defects must be reported immediately, but no later than 3 days after delivery or collection. In the case of deliveries with transport damage, the customer must also immediately record a damage report, which he must have visualized by the carrier.

5.2 Hidden defects

Hidden defects must be reported immediately after discovery.

5.3 Form of the notice of defects

Defects according to Clauses 5.1 and 5.2 must be notified in writing. Late notices of defects and notices of defects not formulated in writing shall result in the forfeiture of the warranty set forth in Clause 5.4.

5.4 Warranty

In case of warranty Media Solutions GmbH is entitled to choose:
- to deliver a replacement against return of the rejected goods,
- refund the purchase price
- or to compensate the reduced value of the goods while maintaining the purchase contract.
In the event of failure to notify us in due time, any warranty and any other claim of the customer shall expire, unless the damage or defect was not recognizable during the required incoming inspection.

6. transfer of benefit and risk

The risk shall pass to the customer upon shipment or collection of the products. Benefit and risk shall pass to the customer when the products are dispatched. If the products are to be picked up by the customer, benefit and risk are transferred to the customer with the notification of the provision of the products. If the shipment is delayed at the request of the customer or for other reasons for which Media Solutions GmbH is not responsible, the benefit and risk passes to the customer at the time originally intended for shipment or collection.

7. payment conditions

7.1 Payment deadline and delay

Unless otherwise agreed in writing, all invoices from Media Solutions GmbH are due for payment to the specified account 10 days after the invoice date, strictly net. After expiration of this period, the customer is in default without reminder. Media Solutions GmbH can claim an interest on arrears in the amount of 5 %. All reminder and collection charges in case of default of acceptance or payment are at the expense of the buyer.

In case of default of payment by the customer, Media Solutions GmbH is entitled without special warning to stop all further deliveries to the customer in whole or in part until its claims have been settled or secured. All consequences resulting from such a suspension of delivery are exclusively at the expense of the customer.

7.2 Grace period

If purchase price payments, including advance payments or securities, are not made or not made in full even after the expiration of a reasonable grace period to be set in writing, Media Solutions GmbH can withdraw from the contract without further ado. In case of withdrawal from the contract, Media Solutions GmbH can demand from the customer an adequate compensation for rent and wear and tear of the objects of purchase and compensation for the damage caused by the default of the contract. Instead of withdrawing from the contract, Media Solutions GmbH can also proceed according to the general default rules of the Code of Obligations (Art. 107 OR). Media Solutions GmbH is entitled, in case of default of payment by the customer or if the customer's credit limit has been reached, to suspend all further deliveries in whole or in part until the outstanding payments have been settled or the credit limit has been restored. The resulting costs will be borne by the customer.

7.3 Immediate maturity of receivables

All claims of Media Solutions GmbH, including those for which payment in installments has been agreed upon, become due immediately if a) the customer repeatedly fails to comply with terms of payment or b) upon request of Media Solutions GmbH does not immediately provide the necessary securities to dispel justified doubts of Media Solutions GmbH regarding his liquidity/ability to pay, such as in case of debt collection or other indications of payment difficulties of the customer. The customer has the obligation to notify Media Solutions GmbH if liquidity bottlenecks are foreseeable.

7.4 Assignment of receivables

At the request of Media Solutions GmbH, the customer assigns his claims against end customers arising from the resale of products delivered by Media Solutions GmbH to Media Solutions GmbH on account of payment (Art. 164ff. OR).

Media Solutions GmbH is entitled to assign claims against customers to third parties. Media Solutions GmbH is also entitled to demand from the customer that he assigns his outstanding claims from the resale of the products to the end user to the extent of the outstanding payment to Media Solutions GmbH.

7.5 Settlement exclusion

The customer is not entitled to set off any counterclaims against claims of Media Solutions GmbH.

7.6 Claims arising from warranties

The offsetting of counterclaims of the purchaser is excluded. Claims asserted by the buyer based on warranty or alleged defects do not release him from the obligation to pay until a final court decision has been made. Media Solutions GmbH reserves the right to deliver goods only against security, advance payment or cash on delivery, in deviation from the above terms of payment. Advance payments are not subject to interest.

7.7 Repurchase of current products

After review and approval by Media Solutions GmbH Purchasing, current and unopened products that are sold frequently and that are not in excess stock can be repurchased by Media Solutions GmbH. Based on the customer's request, the purchasing department will decide whether to make a buyback offer to the customer. The purchasing department is free with regard to the repurchase conditions, especially with regard to the value assessment of the products. These repurchases can only be made if the contract between the manufacturer and Media Solutions GmbH (Switzerland) is still valid and the customer is charged a restocking fee. Products ordered especially for customers (products with classification C) can neither be cancelled nor returned. This is noted on the invoice for each product concerned.

8. credit limit

Media Solutions GmbH determines the credit limit based on the turnover. In case of late payment, indications of insolvency or other doubts about the creditworthiness of the customer, Media Solutions GmbH reserves the right to reduce the credit limit at any time or to demand immediate payment or adequate credit securities from the customer.

The customer is obligated to immediately inform Media Solutions GmbH of any significant changes in his company, e.g. regarding shareholders, legal form, business address, but also in the board of directors or in the management, as well as any financial problems that endanger the business existence.

9. retention of title

The delivered products remain the property of Media Solutions GmbH until full payment of the purchase price including any interest on arrears and further costs. Until then, the customer must carefully store the products delivered by Media Solutions GmbH. The products may not be sold, pledged or otherwise made available to third parties until the purchase price has been paid in full. Media Solutions GmbH is entitled to register the retention of title according to Art. 715 ZBG in the retention of title register at the respective domicile/seat of the customer at the customer's expense until this time. The customer is obligated to give Media Solutions GmbH his written consent in all essential points for the registration of the retention of title upon first request (Art. 4 para. 4 of the Federal Court Ordinance regarding the registration of retention of title). The customer is also obliged to inform Media Solutions GmbH in advance of any change of his domicile/registered office.

10. return of products

A return of products by the customer requires the prior consent of Media Solutions GmbH and is at the expense and risk of the customer. The return of the products must be in the original packaging and accompanied by a detailed description of the error/defect and an RMA number.

Media Solutions GmbH reserves the right to return products with missing, defective or described original packaging or products that are no longer in perfect condition to the customer at the customer's expense and risk.

In case of returned goods, which are not caused by the fault of Media Solutions GmbH, the customer will be credited with the value of the goods based on the lower price, if the price has been reduced in the meantime. Media Solutions GmbH also reserves the right to charge a handling fee.

11. guarantee and warranties

11.1 General

The responsibility for the selection, configuration, deployment as well as the use of products and the results achieved with them lies with the customer or the purchaser of the products, i.e. the end customer. The customer acknowledges that Media Solutions GmbH.

The warranty of Media Solutions GmbH for the products delivered by it is determined in every respect by the warranty provisions of the respective manufacturer/supplier. The customer waives any further warranty claims against Media Solutions GmbH and the manufacturer/supplier. Media Solutions GmbH's only obligation is to assign any warranty claims of its own against the manufacturer/supplier to the customer.

11.2 Exclusions

The customer acknowledges that, based on the respective applicable warranty provisions, the warranty is generally limited to rectification or replacement of the defective/deficient products at the discretion of the respective manufacturer/supplier and, moreover, only applies if the products remain in Switzerland or in the Principality of Liechtenstein

Furthermore, the customer acknowledges that in any case a defect is only present if it is reported in detail to Media Solutions GmbH in writing immediately after discovery and contains a relevant and reproducible error. The warranty is excluded in particular for defects which are based on one of the following causes:
(a) inadequate maintenance;
b) Failure to observe the operating or installation instructions;
c) improper use of the products;
d) Use of unauthorized parts and accessories;
e) natural wear and tear;
f) Transport, improper handling or treatment;
g) Modifications or attempted repairs;
h) external influences, in particular force majeure (e.g. failure of the power supply or the air conditioning system, damage caused by natural forces) as well as other reasons for which neither Media Solutions GmbH nor the manufacturer/supplier are responsible.

Repair services not covered by the manufacturer / supplier as well as additional costs caused by the customer will be charged to the customer. In any case, the customer adheres to the procedures defined by Media Solutions GmbH or the respective manufacturer / supplier for the processing of any warranty claims.

11.3 Warranty services

In the event of a warranty claim, this usually consists, at the discretion of Media Solutions GmbH, of rectification or replacement of the defective product in accordance with the warranty provisions of the manufacturer or supplier. In addition, the warranty services include the transport costs from Media Solutions GmbH to the customer. The transport costs from the customer to Media Solutions GmbH are at the expense of the customer. The customer has no right to a replacement product for the duration of the repair or replacement delivery. If a component cannot be repaired or replaced with the same component during the warranty period, the item will be issued a credit note in the amount of the current daily price. Whether a credit note or a replacement is issued will be decided by Media Solutions GmbH or the manufacturer or supplier.

11.4 Warranty period

The warranty period is specified in each case by the manufacturer.

11.5 Transport damage

In case of transport damage, it must be immediately noted on the delivery bill and the delivery bill must be signed, otherwise the customer will not have a warranty claim. If the customer has noticed that the goods are damaged, he can refuse to accept them. Any damage must be immediately reported by the customer to both the chauffeur and Media Solutions GmbH.

12. liability

12.1 General

Media Solutions GmbH is only liable for direct damage and only if the customer proves that this was caused by gross negligence on the part of Media Solutions GmbH or the third parties commissioned by Media Solutions GmbH. Liability is limited to the price of the respective delivery/service.

12.2 Exclusion

Any further liability of Media Solutions GmbH, its auxiliary persons and third parties commissioned by Media Solutions GmbH for damages of any kind is excluded. In particular, the customer has in no case claims for compensation for damages that have not occurred to the product itself, such as namely loss of production, loss of use or data, loss of orders, loss of profit and other indirect or consequential damages.

12.3 Liability claims

Media Solutions GmbH agrees to assign to the customer any liability claims recognized by the manufacturer/supplier.

12.4 Industrial property rights

Unless otherwise agreed, Media Solutions GmbH assumes no liability that the products delivered by it do not violate industrial property rights of third parties (patent, copyright or other property rights). The customer is obliged to inform Media Solutions GmbH immediately and in writing if such infringements are asserted against him. If the delivered products have been created according to designs or instructions of the customer, the customer has to indemnify Media Solutions GmbH from all claims, which are raised against Media Solutions GmbH due to infringements of industrial property rights of third parties. Any legal costs (court and lawyer's fees) are to be advanced by the customer appropriately.

13. patents and other property rights

If a third party should claim or assert claims against the customer or his end customer due to infringement of a patent, copyright or other industrial property right by delivered products, the customer will inform Media Solutions GmbH in writing and without delay about such infringement notices or claims made. Media Solutions GmbH will immediately forward these notices to the supplier or manufacturer and request them to settle the situation. The customer waives any warranty or liability claims against Media Solutions GmbH.

14. re-export

The products distributed by Media Solutions GmbH are subject to US and Swiss export regulations. The customer undertakes to apply for a special export permit from the competent authority before any re-export of the products. This obligation is to be transferred to the respective purchaser with the obligation to pass on in the event of sale or other transfer of the products.

15. software

15.1 General

The conditions of use and warranty regarding the software products, manuals and other documents supplied by Media Solutions GmbH are governed by the special provisions of the respective software manufacturer, which are contained in particular in the software license agreement between the software manufacturer and the user/end customer.

In the event of resale or other transfer of the software products, the customer undertakes to transfer to the respective purchaser the obligations arising from the terms and conditions of use and warranty of the software manufacturer with the obligation to transfer.

15.2 License rights

With the delivery and payment of software programs no ownership of the program is acquired, but only the right of use. The programs remain the property of the manufacturer. The use of the software programs is subject to the respective license rights of the manufacturers and can be requested independently from Media Solutions GmbH or the manufacturer before the purchase of the software. Media Solutions GmbH is not entitled to decide or dispose of any license rights of other manufacturers. Media Solutions GmbH is not liable for wrong licensing of end users by the customer and cannot be held responsible for consequential damages. The customer acknowledges the existing copyrights to data carriers, program manuals, etc. according to Swiss copyright law.

15.3 Prices

The prices of annually renewing licenses are always valid for the current new solution or renewal and Media Solutions GmbH reserves the right to correct the prices at renewal due to strong currency fluctuations or price adjustments of the manufacturers. The customer has no right to fixed prices for renewing licenses.

16. confidentiality

The customer agrees to keep confidential and secret all data and information obtained in connection with the business relations with Media Solutions GmbH, which belong to the business or trade secret of Media Solutions GmbH, such as price lists, discounts, customer lists, etc.. Such data and information may only be disclosed to third parties with the express consent of Media Solutions GmbH. This obligation of secrecy on the part of the customer continues unrestrictedly and indefinitely after termination of the contractual relationship with Media Solutions GmbH.

The customer may only pass on data, which he has learned through the use of the online store, to third parties with the express written consent of Media Solutions GmbH and only if he complies with the usage regulations stipulated by Media Solutions GmbH.

17. data protection

17.1 General

Media Solutions GmbH is entitled to process the customer data obtained in the course of the business relationship, such as names and addresses, type and quantity of products purchased, sales, etc., regardless of whether they originate from the customer himself or from third parties, in accordance with the Data Protection Act and to pass them on to third parties. If the manufacturer offers special project prices for project business, the customer must provide Media Solutions GmbH with a copy of the proof of delivery of the products as well as the invoice to the end user within 10 days after request. The customer is obligated to observe the respective guidelines in the project business. This also applies to the obligation to keep the documents belonging to the project business according to commercial and tax law regulations. If the customer violates our or the manufacturer's guidelines, Media Solutions GmbH has the right to charge back the amounts wrongfully collected from the buyer and to exclude the customer from future special project prices.

17.2 Manufacturer reporting

The customer acknowledges that Media Solutions GmbH processes customer-related data such as sales prices and quantities as well as names and addresses of customers within the scope of the periodic so-called manufacturer reporting and transmits these data to manufacturers/suppliers, possibly also abroad.

With his order, the customer gives Media Solutions GmbH his consent that Media Solutions GmbH is entitled to pass on information about the payment processing to credit, trade and business information agencies for the purpose of checking the payment behavior and creditworthiness.

19. transmission

Rights and/or obligations from individual contracts (deliveries, services) can only be transferred by the customer with the prior written consent of Media Solutions GmbH.

20 Jurisdiction and Applicable Law

Exclusive place of jurisdiction is Olten (SO). The customer expressly declares that he is subject to the jurisdiction agreed here, waiving his ordinary place of residence jurisdiction. The legal relationship is subject to Swiss law.

The individual contracts and these General Terms and Conditions shall be governed exclusively by Swiss law to the exclusion of state treaty norms, in particular the UN Convention on Contracts for the International Sale of Goods.