AGB - General Terms and Conditions for Sales VMS

Validity of Terms and Conditions

The delivery of goods, supply of services and offers of the company VideoMovingSystem, VMS – Kühne & Kapeller GmbH, Viktorgasse 22/18, 1040 Wien, hereinafter referred to as VideoMovingSystem, are carried out exclusively in accordance with these terms and conditions (hereinafter: Terms and Conditions) in the version currently in force. The Terms and Conditions thus also apply to all future transactions even where they are not explicitly agreed upon. Any deviant condition requires our written consent. The Terms and Conditions are available under the link “AGB”. The conditions of delivery and sales of the contractual partner (hereinafter: “Purchaser”) are not subject matter of the respective contract; further, they are not accepted by maintaining silence or by delivery.

Online Shop

This provision governs the specific rules applying to the Online Shop which has been set up by VideoMovingSystem at the Website www.vmsat.com; the other provisions of this Terms and conditions also apply to the Online Shop, as long as they are not contradictory to this article.

Subject of the Online Shop is the purchase of the products offered therein (hereinafter: “Product(s)”) by delivery or download. By purchasing the VMS Visuals DVDs or single tracks of the VMS Visuals series, Purchaser gains the rights granted in the “License Agreement Regarding the Use of the VMS Visuals DVD”. “Purchaser” is only the person named in the registration or named in the order. Indirect representation is not accepted.

Prior to submitting his offer, Purchaser receives information regarding the necessary technical steps by means of the symbols used at the Online Shop and the shopinstructions which are available on the website www.vmsat.com. Purchaser places his binding offer by choosing the respective products, entering his data, choosing the mode of ordering and clicking the button “BUY” respectively “DOWNLOAD”. VideoMovingSystem accepts the offer by complying, thus, the contract is concluded by downloading the Product or delivery of the Product.

Purchaser has the right pursuant to § 5 e KSchG to withdraw from the agreement within seven working days from the delivery of the Product, whereby Saturdays are not considered working days.

Every user obtains at registration a user name and a password for security and identification. The aforementioned user name in combination with the password serve as verification, whether the user is authorized to conduct individual transactions at the Online Shop. Purchaser is obliged to use all efforts to keep aforementioned security and identification information secret and prevent it from being passed on to third parties. In the event of loss of aforementioned security and identification information or of it is suspected that an unauthorised party has obtained knowledge of aforementioned information, the seller is obliged to immediately change the information.

VideoMovingSystem undertakes no warranty – except for wilful damage and gross negligence – for any damage at Purchasers computersystem or any other technical device which may result from the downloading of Products by Purchaser.

Purchaser agrees that order data is by handling the orders as far as necessary collected, processed and stored as well as passed on.

Conclusion of the contract

The character and the extent of the services rendered by VideoMovingSystem is based upon the content of the respective contract. The last offer is always the valid offer. Our offers are subject to change. We are bound legally from the time of conclusion of the contract. The contract is concluded, when we have received the signed confirmation of the order, at the latest at acceptance of our delivery. All declarations, information, advice and oral agreements of any kind become binding only by means of our written consent. Oral Agreements concluded by our employees are valid only with our written endorsement. Where it is not agreed to the contrary, our Terms and Conditions are applicable also to future orders of the Purchaser; regardless if we refer to the Terms and Conditions in the particular case.

Prices and Changes of Prices

The pricedetails in our pricelists are subject to change and nonbinding and may be altered any time without prior announcement. Misprints are reserved. Where it is not explicitly noted, the prices announced by us are without VAT. Unless it is agreed to the contrary, the buyer bears the costs for packaging, freight and insurance.

Terms of Payment, Default Interest

The payment of purchased products is collected on delivery, prepayment or payment after we received the receipt. Relieve is granted only for payments which are paid directly to VideoMovingSystem or to a bank account named by VideoMovingSystem. Payments to our bank account are considered as being paid at the time of incoming. Bills from VideoMovingSystem are due immediately, unless it is agreed to the contrary. In any case date of payment is the agreed date of payment from the date of the receipt. Cash discount deductions require a separate agreement. Reorders are considered and billed as new orders and are not included in possible lump sums. Checks are accepted only pursuant to explicit agreement on account of payment and not instead of payment. The acceptance occurs at the value of the date on which we can dispose over the equivalent value.

We reserve the right to return irredeemable checks to the customer and demand cash payment. All costs incurred at the encashment of the check amount have immediately to be paid cash by the client. VideoMovingSystem has the right to transfer all rights from the contract with Purchaser several times pursuant to §§ 1392 ff of the Austrian Civil Law Code (ABGB). In case of delay of Purchasers payment, we have the right to demand either for the damage or the reminder fees and expenses of collection.

Reminder Fees and Expenses of Collection

In case of delay, the Purchaser is obliged to reimburse adequate reminder fees and expenses of collection which incurred to us in asserting our legal rights. In particular, the Purchaser agrees to reimburse those expenses of collection, which result out of the regulation of the Austrian Ministry of Economics about the maximum compensation of professional collectors. In the event that VideoMovingSystem collects outstanding fees itself, the Purchaser agrees to pay the amount of EUR 10,90 for every reminder, as well as the amount of EUR 3,63 every half year for the keeping of records of the obligation.

Conditions of Delivery

Conditions of delivery and time limits which are agreed upon require the written form. In the event of shipment of goods, the goods are shipped at our choice either per parcel service, post, train or forwarding company. Partial deliveries are also possible. In the event of forwarding at cash on delivery we have the right, to conclude respective insurance agreements at the costs of the Purchaser.

Delivery dates are approximate, unless a fixed delivery date is agreed upon. The period of delivery either starts at the date of confirmation, the date of completion and verification of obligations of Purchaser, or completion of conditions which are to be fulfilled by Purchaser, whatever is the latest. Times of delivery are subject to unforeseeable or unavoidable circumstances or circumstances which can not be influenced by VideoMovingSystem, such as force majeure, strike, delay of delivery by subsupplier, which are due to aforementioned circumstances. In the event that a delivery or service becomes impossible, VideoMovingSystem has the right to withdraw from the contract either in the whole or in parts by written notification. In the event that Purchaser does not accept the delivery of goods as agreed (default of acceptance), we have – after unsuccessful extension of time – the right to either store the goods at our company, whereby we bill a storing fee in the amount of 0,1% of the gross amount of the receipt, or to store the goods at costs and risk of Purchaser at an authorized storageplace. Simultaneously, we have the right to either insist on fulfilment of the contract or to withdraw from the contract after an extension of time of at least two weeks and to make other use of the goods. We have no obligation of performance before the Purchaser has fulfilled all his obligations necessary for our performance, in particular before he has rendered all technical and contractual obligations and conducted possible preparatory works and preparations.

Shipment of Goods and Transfer of Risk

The risk is transferred to Purchaser at the time where the Product is delivered to Purchaser or to the person conducting the transportation or where it has left VideoMovingSystem for Shipment. In the event that shipment is being delayed at the request of Purchaser, the risk is transferred to him at the time of notification of disposition for shipment. The Purchaser bears the costs of shipment for samples which were provided by VideoMovingSystem on loan. The samples remain in the property of VideoMovingSystem. Deliveries from VideoMovingSystem to Purchaser are carried out to the last address Purchaser has communicated to VideoMovingSystem. Purchaser is obliged to duly inform VideoMovingSystem of any changes in the address of delivery; otherwise deliveries to the last communicated address shall be deemed as being received.

Reshipment In the event of legitimate claims, the dispatch route has to be agreed before reshipment. We reserve any onsite reparations. We principally do not accept carriage forward or goods delivered by cash on delivery. If a device has been left at Purchaser for inspection, it has – in case no returnagreement exists – to be returned to our disposal at the latest 14 days after receipt. In this case, it is not sufficient to merely forward the device prior to this date. The purchaser has to pay the costs of the forwarding. If the device was damaged, Purchaser agrees to purchase it.

Replacement

In case of purchase of mailordered goods, Purchaser has the right pursuant to § 5 e KSchG to withdraw from the agreement within seven working days from the delivery of the product, whereby Saturdays are not considered working days. Purchaser may also choose an exchange of goods within seven working days. Software and lamps are principally excluded from an exchange. It is prerequisite for an exchange that the good is being returned free from defects, in original packaging under inclusion of the receiptnumber and the number of the delivery note. The returngoods must be delivered free. In the event that Purchaser does not wish an immediate replacement against other goods, he receives a voucher in the amount of the value of goods. The voucher has to be redeemed within 6 months after the issuedate.

Withdrawal from the Agreement

In the event of default of acceptance or because of other important reasons, such as bankruptcy or decline of bankruptcy due to insufficient assets and default of payment we have the right to withdraw from the agreement, if it has not been completely fulfilled by both parties. In the event of a withdrawal due to default of Purchaser, we may choose between liquidated damages in the amount of 15% of the gross receipt amount or real damages. In the event of default of payment, we are released from all obligations to render a service or deliver Products and we have the right to hold back goods not yet delivered and to demand advance payments and securities or to withdraw from the agreement after a reasonable extension of time. In the event that Purchaser withdraws from the agreement without justification or that Purchaser demands termination of the agreement, we may choose between the fulfilment of the agreement or consent to the termination of the contract; in latter case the client is obliged to pay – at our choice – liquidated damages in the amount of 15% of the gross receiptamount or the real damage.

Warranties, Liabilities and Damages

In the event that the subject of delivery is defective or that it does not possess warranted qualities or that it becomes defective due to deficiencies of fabrication or material within the warranty period, VideoMovingSystem shall, at exclusion of other warrantyclaims, upon its choice, replace the product or grant a correction of defects. Several corrections of defects are allowed. Further, we may satisfy justified claims at our choice by means of rectification of defects, free replacement and voucher against return of the defective goods or reducing the purchase price. In case of asserted defects, the further proceeding will be determined by VideoMovingSystem. If a correction of the defect and an exchange of the Product would require disproportional efforts, Purchaser has the right to price reduction or, unless at a minor defect, the right to reversal of the contract.

The warranty period is six months long, unless a longer warranty period is mandatory by law. The defect of the good has to result out of a defect which was present at the time of delivery to Purchaser. If such defects are located, we immediately have to be notified. Replaced parts become our property. The defective Products have at shipment to be in the same condition as at the time of assertion of the defect; the Products have to be shipped to VideoMovingSystem immediately – but subsequently to having reached an agreement about the modalities of shipment. Purchaser bears all costs of shipment. In the event that the goods were altered, modified, repaired or otherwise impaired by Purchaser, all warranty claims are excluded.

Technical calculations, constructions, documents and specification sheets prepared by VideoMovingSystem for customer service have to be examined by Purchaser in any direction towards accuracy and completeness. All liabilities or warranties of VideoMovingSystem are excluded. A more extensive warranty than the one for the delivered Products is excluded. If several Products which do not belong together are delivered, a defect of one of the goods does not entitle to claims with respect to the whole delivery. Afore mentioned conditions do not apply to unexamined used goods, those are delivered under exclusion of any warranty.

To third parties software, exclusively the terms of the respective producer apply. Wear parts and accessory as well as reparations due to external influences (such as the use of unauthorised data mediums or interferences by third parties) are excluded from warranty. If contractsubjects are used in combination with devices/programs of third parties, there is warranty for defects in function or capacity only, where such defects occur also without such combination. Any exceeding liability, except in case of gross negligence, is excluded. In any case, the liability for property damage and secondary damage, in particular due to default, incapacity of service, loss of profits, losses which were expected but not incurred, damage due to claims of third parties towards customers, indirect damage as well as damage to recorded data is excluded. Damage claims are excluded in cases of slight negligence. This does not apply to personal injury. Unless the claim is based on a consumer transaction, the claimant bears the burden of proof of slight or gross negligence. If the claim is not based on a consumer transaction, the period of limitation for damage claims is two years from the transfer of risk. The provisions covering damage included in the present terms and conditions or otherwise stipulated are valid also where the damage claim is raised besides or instead of a warranty claim. Claims to damages pursuant to § 12 of the Austrian Law of Product Liability are excluded, unless the claimant proofs that the defect was caused in our sphere and that it was the result of at least gross negligence.

Reservation of Proprietary Rights

All goods are delivered under reservation of proprietary rights and remain our property until full payment. The exercise of the reservation of proprietary rights is a withdrawal from the contract only where we have issued an explicit statement. In the event of a return of goods we have the right to charge fees of transportation and manipulation. In the event that third parties access the goods subject to reservation of proprietary rights – in particular through execution – Purchaser agrees to point out that the Products are our property and notify us immediately. If Purchaser is consumer and no business man whose business is the trade with the Products purchased from us, he may not dispose, in particular by selling, bonding, giving away or lending the goods under reservation of proprietary rights, until we received the complete payment of the purchase price. The customer bears the full risk for the Products under reservation of proprietary rights, in particular the danger of destruction or deterioration. If Purchaser is a business man, he has the right to sell the Products in course of his business; for this case he assigns already now all his claims – including VAT –from the sale towards buyers or third parties, regardless, whether the goods have been sold without or after processing to VideoMovingSystem. Purchaser has still the right to collect the receivables after the assignment of claims. This does not affect VideoMovingSystems right to collect afore mentioned receivables. We however agree to not collect the receivables, as long as Purchaser complies with his payment obligations without default and in particular as long as there is no application for insolvency or default of payment. In this case, Purchaser loses his authorization to collect the receivables and we may demand that he informs us about all assigned receivables and the respective debtor and provides us with all information necessary to collect the receivables and that he provides us with the respective documents and that he notifies the (third party) debtors of the assignment. We agree to release the securities granted to us as far as their realized value exceeds the secured receivables more than 10%; whereby we have the right to select, which securities are released.

Jurisdiction and Applicable Law

The contract is subject to Austrian law under exclusion of the International Private Law and all references to foreign law and under exclusion of the UN Convention on International Sales Law. Place of jurisdiction is – for district court proceedings – the district court for the Inner City of Vienna, respectively – for civil court proceedings – the commercial district court of Vienna or the civil court of Vienna.

Miscellaneous

Sideagreements, changes and supplements require the written form. If one or more of the provisions of this Terms and Conditions are inapplicable for any reason, this has no effect on the validity of the remaining provisions. If and as long as one of the provisions of this Terms and Conditions is contradictory to a mandatory provision of law, it is replaced by the respective legal provision for the period of the validity of the legal provision. This does not have an effect on the validity of the remaining provisions. The invalid, inexecutable or missing provisions shall be replaced by a reasonable provision which insofar as legally possible comes closest to what the parties would have agreed upon or would have agreed upon according to the intent of the parties and the purpose of the agreement, if the parties at the time of conclusion of the agreement had considered this point.