General Terms and Conditions of acousticpearls GmbH
hereinafter referred to as “acousticpearls”

Section 1 – Scope
(1) These General Terms and Conditions apply exclusively. The provisions stated hereinafter shall apply to all deliveries, services, consultations, and any other auxiliary services.
Any terms of purchase applied by the ordering party shall herewith not be recognized.
Terms and conditions of the ordering party that are to the contrary or deviate from those stated hereinafter will only be recognized by acousticpearls, if acousticpearls has explicitly agreed to them in writing. The agreement referring to the written form can only be rescinded in writing.
It shall be assumed that the terms of acousticpearls governing sales, delivery, and payment have been accepted once the order has been placed, or by the latest, at receipt of the goods.
(2) An ordering party can be either a merchant (business person) or a non-merchant (consumer). The respective relationship is dictated by special laws, which are as follows. With respect to merchants, these General Terms and Conditions also apply to future transactions inasmuch as this is connected to legal transactions of a related nature, with the condition that the right to make changes in future transactions is reserved. With respect to non-merchants, these General Terms and Conditions shall only be changed or applied to future transactions by contractual agreement.

Section 2 – Offer and Conclusion of Contract

(1) All offers are subject to change and non-binding.
(2) Orders can only be submitted in writing or via e-mail. acousticpearls cannot be made liable for mistakes that may occur due to illegibly or inaccurately written or incorrectly transmitted orders.
(3) Orders, price arrangements, and any other agreements need to be confirmed in writing by acousticpearls before becoming binding.
(4) An order signed by the ordering party is considered a binding order. acousticpearls can accept this offer within two (2) weeks by either sending an order confirmation or the ordered goods.
(5) acousticpearls markets fabric-wrapped acoustic panels, among other items, that are manufactured exclusively according to customer specifications and are individually tailored to the specific needs of the ordering party. In terms of an order, acousticpearls manufactures each piece uniquely. The ordering party and acousticpearls shall agree that the ordered and subsequently confirmed quantity of goods is accepted unconditionally. A right of return is ruled out.

Section 3 – Submitted Documents
(1) acousticpearls retains the sole right of ownership and copyright for all documents submitted to the ordering party in connection with the placing of the order, such as calculations, drawings, color and fabric samples, and any other demonstrative samples or materials. These documents may not be made accessible to third parties, unless acousticpearls grants the ordering party its express written consent. If acousticpearls does not accept the offer by the ordering party within the timeframe stated in Sect. 2, Para. 3, these documents must be returned to acousticpearls immediately.
(2) In the absence of an explicit agreement, the ordering party may not pass along the documents provided by acousticpearls to a third party or continue to use them beyond the end of the contract. Record retention for videos and digital images shall not last longer than twelve (12) months.
(3) If the ordering party delivers drafts, acousticpearls shall not be obligated to check for the existence or infringement of any patent, licensing, copyright laws, as well as trademarks, design patents, samples, or other protective rights. acousticpearls is entitled to absolute immunity in case any claims, no matter of what nature, against the ordering party arise due to an infringement of a protective right.

Section 4 – Copyright

(1) acousticpearls reserves the right to place a copyright on any or all products as customary in the sector with legal consequences pursuant to Copyright Law.
(2) acousticpearls is a registered trademark of acousticpearls GmbH (German Patent and Trademark Office no. 307 62 912).

Section 5 – Tolerances
(1) The specifications provided in documents for the offer such as samples, illustrations, drawings, material samples, and weights by acousticpearls are only approximations; the same applies to those in catalogues, flyers, the Internet, etc., as well as to any other demonstrative samples.   
(2) The qualified and proper tolerances as well as the justifiable tolerances for the intended purpose shall apply to all measurements, color hues, etc. specified by acousticpearls.
(3) acousticpearls reserves the right to make changes in particular to the design inasmuch as the object of the contract and its utilization are not substantially modified.
(4) acousticpearls reserves the right to make changes to products, inasmuch as they are required in terms of technology, functionality, or purpose.
 
Section 6 – Prices and Terms of Payment
(1) All prices listed are expressed in euros (EUR) and do not include the statutory value-added tax. Any prices that have been agreed upon shall not be binding for future orders.
(2) Unless otherwise agreed upon in writing, the prices given by acousticpearls are considered to be ex-works excluding packaging, shipping and value-added tax. The costs of packaging and shipping will be billed separately.
(3) In the event that material price or wage increases have occurred between submitting an offer and placing the order, acousticpearls reserves the right to change the price for general merchants when confirming the order. 
(4) If the costs of materials, wages, tools, or legal taxes should increase for reasons above and beyond the control of acousticpearls between concluding the contract and performance of delivery, acousticpearls shall be entitled to increase the arranged price as compensation, provided that it discloses the affected components from the original calculation and lists the specific increased cost factors corresponding to the scope of the price increase. 
In transactions with non-merchants, acousticpearls is only entitled to take such actions if more than four (4) months have elapsed between concluding the contract and performance of delivery.
(5) Unless otherwise agreed upon, the purchase price shall be paid within seven (7) days following delivery. acousticpearls reserves the express right to demand prepayment for orders exceeding a specific value that is determined by acousticpearls. A discount shall only be permitted as per separate agreement in writing.
(6) If a non-merchant is involved in the purchase agreement, past-due payments shall be charged five (5) percent interest above and beyond the respective base interest rate. For purchase agreements with merchants, an interest rate of eight (8) percent above and beyond the base interest rate shall be charged. acousticpearls reserves the right to claim for any other damages caused by the delay in payment.
(7) Payment of purchase price may only be made to the account named by acousticpearls.
(8) Credits by check or bill of exchange shall be made with the value date on which acousticpearls has access to the equivalent subject to the date of transfer, minus the valid base interest rate, and any bank or other collection fees.
(9) If, after concluding the contract, justifiable doubt about the ordering party’s ability to pay arises, indicating the demand held by acousticpearls is at risk, acousticpearls shall be entitled to require prepayment or a provision of security before delivery of any remaining items. After setting an appropriate respite accompanied by a penalty of denial of service and subsequent failure to comply, acousticpearls shall be entitled to withdraw from the contract and demand damages due to non-fulfillment.
(10) acousticpearls shall be entitled to offset claims against the ordering party, regardless the legal grounds.
(11) If the ordered and confirmed products are not accepted, acousticpearls shall be entitled to charge the full price quoted.

Section 7 – Delivery Period
(1) The delivery periods quoted by acousticpearls are non-binding.
(2) The quoted delivery periods are considered to be ex works, excluding packaging.
(3) A set delivery period can be arranged between the ordering party and acousticpearls in a special agreement and explicitly confirmed by acousticpearls in writing.
(4) The starting date of the delivery period quoted by acousticpearls depends on the clarification of all technical aspects, notification of all custom specifications by the ordering party, and timely and proper fulfillment of all the ordering party’s obligations. The ordering party shall immediately check the specifications listed in the order confirmation and countersign it confirming their correctness. Clarifying all details, in particular the template and execution drawings, which are checked and approved by the ordering party, is a requirement. The delivery period shall be adjusted accordingly. Changes to orders shall also cause delivery periods to change accordingly. acousticpearls reserves the right of objection to the unfulfilled contract.
(5) If the ordering party defaults in accepting the delivery of goods or culpably breaches other obligations of cooperation, acousticpearls shall be entitled to compensation for damages occurring in this sense, including any additional expenditure. acousticpearls reserves the right to make additional claims. In the event that the aforementioned conditions exist, the risk of accidental loss or deterioration in the condition of the merchandise shall pass to the ordering party at the time of default of acceptance or default of obligation.
(6) In the event of a delivery being delayed, acousticpearls can be made liable to a claim of an individually agreed compensation for delayed delivery for each complete week at 0.5 percent of the delivery value up to a maximum of 5 percent of the value of the item affected by the delay.
(7) Further statutory claims and rights of the ordering party due to a delayed delivery are ruled out.
(8) acousticpearls is entitled to make partial deliveries to a reasonable extent.
(9) In the event of a delivery delay on part of acousticpearls, the ordering party must set a reasonable extension of deadline. In the event of a delivery delay that cannot be attributed to acousticpearls, acousticpearls shall be entitled to extend the delivery period by a reasonable period of time.
(10) Moreover, in the event of non-availability, acousticpearls shall be entitled to be released from an obligation to fulfill the contract if the ordering party is immediately informed of the non-availability. Any payment will be refunded promptly.

Section 8 – Transfer of Risk during Shipment

(1) The risk transfers to the ordering party with provision of the goods and the corresponding notification of the ordering party of readiness for shipment.
(2) If the ordering party requests to have the goods sent to him, the risk of accidental loss or deterioration of the goods is transferred to the ordering party with final notification of readiness for shipment, however at the latest with transfer to the forwarding agent; regardless of who bears the freight fees and whether the shipment is made from the place of performance. This also applies to partial deliveries.
(3) Insurance policies shall only be taken out if expressly requested by the ordering party and at his expense.

Section 9 – Right of Revocation of Online Purchases for Non-merchants
(1) If the ordering party is a non-merchant and the contract was concluded electronically, the ordering party shall not be bound anymore to his declaration of concluding a purchase agreement, provided that he revokes it within two (2) weeks after receiving the goods. The revocation needs to be made in writing, by fax, via e-mail, on a permanent data carrier, or by returning the goods.
The revocation does not need to include any explanation.

 
(2) For compliance with the deadline the written revocation needs to be sent in due time to: acousticpearls GmbH, Am Wall 162/163, 28195 Bremen, Germany. The ordering party shall be obligated to also include his name, customer number and invoice number for the delivery in question.
(3) After receipt of a valid revocation, acousticpearls shall be obligated to refund any payments that may have been made. The ordering party will receive a credit to the appropriate amount. The ordering party shall be obligated in advance to return the delivery to acousticpearls at his own expense and risk for goods valued at €250 or less, unless the goods delivered do not correspond to the ordered goods.
(4) If the ordering party is responsible for the deterioration, destruction, or other impossibility, he shall be obligated to compensate acousticpearls for any incurred loss in value of the goods.

Section 10 – Returns
acousticpearls will not take back properly delivered merchandise that was custom-made and/or manufactured, even if it is in perfect condition.

Section 11 – Offsetting and Right of Retention
The ordering party shall only be entitled to the right to offset if counterclaims have been established by a court of law or are undisputed. The ordering party shall be entitled to exercise the right of retention insofar as his counterclaim is based on the same contractual relationship.

Section 12 – Reservation of Title

(1) Until complete payment of all amounts from the contractual relationship existing at the time of delivery or arising subsequently, acousticpearls shall retain all claims to the delivered goods; for payments made by check or bill of exchange, until they have been cleared.
(2) The ordering party undertakes to handle the merchandise with care until ownership has been ceded to him. In the event that the merchandise is subject to lien or other seizures by third parties, the ordering party is obligated to immediately inform acousticpearls in writing, unless ownership has already been ceded. If the third party is not in a position to award the supplier the in-court and out-of course costs of a suit according to Sect. 771 of the German Code of Civil Procedure, the ordering party shall be liable for the loss of revenues to acousticpearls.
(3) The ordering party shall be entitled to resell the goods subject to retention of title in the course of normal business, provided that the ordering party is not in default of obligation. The ordering party shall now already transfer to acousticpearls the claims of the buyer from the resale of the goods subject to retention of title in the amount of the total amount due (including VAT) that has been agreed upon with the supplier. This transfer shall apply regardless of whether the merchandise is resold before or after further processing. Despite this assignment, the ordering party shall remain entitled to collect receivables from his customers. This provision is without prejudice to acousticpearls’ right to collect receivables; however acousticpearls shall not invoke this right as long as the ordering party satisfies his payment obligations from the payments taken over, does not default on payments, and especially does not apply for initiation of insolvency proceedings or terminates payments.
(4) The finishing, processing, or modification of the merchandise by the ordering party shall always take place on behalf of and in the name of acousticpearls. In this case, the expectant right of the ordering party to the merchandise shall continue in the transformed article. If the merchandise has been processed together with other objects not belonging to acousticpearls, acousticpearls shall acquire ownership of the new product at a ratio of the objective value of the merchandise to the other processed objects at the time of processing; the same holds true in the event of mixing. Insofar as the mixing occurs in such a way that the ordering party’s item is to be considered the principal object, the ordering party shall transfer a proportionate share in the title to acousticpearls and the supplier shall hold sole ownership or co-ownership. For security of the claims by acousticpearls against the ordering party, the ordering party shall also assign those receivables to the supplier through the combination of the goods subject to retention of title with a property against a third party; acousticpearls accepts this transfer as of now.
(5) Upon the ordering party’s request, acousticpearls shall undertake to release the securities to which it is entitled to such an extent as the value exceeds by more than 20 (twenty) percent the value of the securities.
(6) In the event of culpable default of payment of the ordering party or of material violations of the obligation to exercise due diligence and care, the enforcement of the supplier’s right shall not constitute withdrawal from the contract, unless acousticpearls expressly communicates this fact to the ordering party.
(7) The right of the ordering party to further use the merchandise shall expire when acousticpearls enforces its retention of title.
(8) If, for any reason, the retention of title expires, the claim thereof shall take its place.

Section 13 – Warranty and Notice of Defects
(1) acousticpearls does not accept any liability for continuous availability for delivery of all offered products.
(2) For the ordering party to exercise warranty rights, he needs to have examined the received goods for completeness, damage due to transport, obvious defects, their condition and properties immediately after delivery. Notices of defects shall be immediately sent to acousticpearls in writing. Non-merchants shall undertake to notify acousticpearls in writing of obvious defects within 14 (fourteen) days after delivery of the subject of the contract. Negotiations concerning a notice of defect do not constitute a waiver of the objection by acousticpearls that it was not issued in time or was insufficient.
(3) acousticpearls does not offer any warranty or accept any liability for material samples, including those supplied by the ordering party.
(4) acousticpearls cannot be liable for slight deviations in the delivered goods compared to those displayed. acousticpearls reserves the right to slight deviations in color compared to the appearance on monitors or samples, in format, material or surface quality and in sizes of the product; these deviations due to manufacturing processes cannot be avoided and do not constitute a defect.  
(5) In the event of a supplementary performance, the ordering party is initially entitled to select either a rectification of the defect or a replacement delivery. However acousticpearls shall be entitled to refuse the chosen type of fulfillment if it is only possible by incurring disproportionate expenses and the other type of fulfillment does not entail considerable disadvantages to the ordering party. During the supplementary performance, the reduction of the purchase price or withdrawal from the contract on the part of the ordering party is ruled out. A rectification of a defect can be repeated once and shall only be deemed a failure upon the second unsuccessful attempt. If the supplementary performance has failed or acousticpearls has refused supplementary performance altogether, the ordering party can either demand a reduction of the purchase price (decrease in value) or withdrawal from the contract.
(6) The ordering party shall assert a right of retention in terms of the purchase price only if the notice of defect is considered by both parties as undisputed. The ordering party cannot claim damages for the defect on the following conditions (Sections 13 and 14) until the supplementary performance was deemed a failure or acousticpearls refused any supplementary performance. The right of the ordering party to claim any further damages on the following conditions (Sections 13 and 14) shall remain unaffected.
(7) There is a 2-year warranty, which begins on the transfer of risk, provided that the ordering party is a non-merchant. If the ordering party is a merchant, there is a 12-month warranty. This period shall also apply to claims for compensation for defects and consequential damage, unless claims are filed on account of tort.
(8) acousticpearls does not provide a guarantee on the quality and/or durability of the goods or parts thereof. In particular there shall be no guarantee on the durability of the goods with respect to external factors such as effects of weather and resistance to light. Damage determined to have been caused by said factors shall not be considered defects caused by acousticpearls.
(9) Warranty claims against acousticpearls are non-transferable.
(10) As far as foreign products and/or materials are concerned, liability of acousticpearls is limited to the transfer of claims by acousticpearls against the foreign company. acousticpearls shall only be liable for defects to raw materials, provided that they should have been detected in processing under normal circumstances for the sector.
(11) acousticpearls shall be released from all liability if the defect was improperly rectified by a third party or the ordering party.
(12) If any parts are defective, the ordering party is not entitled to any rights with respect to the remaining parts.
(13) acousticpearls can refuse to rectify the defect if the ordering party does not reasonably fulfill his obligations.
(14) The warranty does not cover
a) Defects and subsequent damage that are due to harmful natural factors or natural wear and tear, non-compliance with installation instructions, improper or negligent handling, improper use, or chemical, electrochemical, or electrical influences.
b) Defects and subsequent damage that are due to modifications or repairs carried out by the ordering party without the consent of acousticpearls and costs for rectifying the defect carried out by the ordering party without the prior written consent of acousticpearls.
c) Defects and subsequent damage that are due to defective components from other suppliers in goods delivered by acousticpearls.
(15) All other claims that are not explicitly listed in this section and are directed at acousticpearls, regardless of their nature, in particular with respect to remuneration of wages, shortfalls, loss of profits, or other subsequent damages, either directly or indirectly, are ruled out. This also applies to deliveries of goods failing to comply with the contract.    

Section 14 – Liability
(1) Liability for initial incapacity, delay, or impossibility shall be limited to fivefold of the payment handed over and limited to only such damage that is typical in such instances.
(2) acousticpearls shall have unlimited liability for damage or injuries to life, body, and health and all other damage resulting from a breach of contract caused willfully or by gross negligence. This also applies to legal representatives and managerial staff of acousticpearls; if vicarious agents are at fault, acousticpearls shall only be liable within the scope of the liability for initial incapacity stated in the preceding paragraph.
(3) acousticpearls shall also be liable for damage caused by slight negligence, provided that such negligence concerns the infringement of contractual obligations, the fulfillment of which is of particular importance for the attainment of the contract's purpose. acousticpearls shall only be liable, however, if the damage is typically related to the contract or is foreseeable. acousticpearls shall not be liable in the event of infringements of non-substantial secondary obligations caused by slight negligence.
This liability also applies to legal representatives, managerial staff, and other vicarious agents of acousticpearls.
(4) Liability is without prejudice to the German Product Liability Act (Section 14 of the Produkthaftungsgesetz, or ProdHaftG).
(5) Any further liability shall be ruled out, notwithstanding the legal nature of the asserted claim. In so far as the liability of acousticpearls is ruled out or limited, this shall also apply to the personal liability of the staff, employees, representatives, and vicarious agents of acousticpearls.
(6) No liability is assumed for damage in transit due to the transfer in risk.

Section 15 – Place of Jurisdiction
Inasmuch as the ordering party is a merchant in the terms of the German Commercial Code (Handelsgesetzbuch, or HGB), a cooperate body under public law or an entity with special federal funding under public law, the place of jurisdiction shall be at the place of business of acousticpearls in Bremen, Germany, for all disputes that arise in the course of this contractual relationship.

Section 16 – Miscellaneous
(1) This contract and the entire legal relationship between the parties shall be governed by the law of the Federal Republic of Germany in force at the respective date under exclusion of the U.N. Convention on Contracts for the International Sale of Goods (CISG).
(2) Any changes or amendments to this contract must be made in writing. This provision also applies to changes to this written form clause. No additional verbal agreements have been made.
(3) Should any clauses of this contract be inoperative, become inoperative, or contain loopholes, the other clauses shall not be affected thereby. The parties shall be obligated to replace the ineffective clause with an effective one permitted by law that economically most closely approaches the ineffective clause in its intended purpose or closes the loophole.
(4) If, for these General Terms and Conditions, there is a version in the English language alongside the German language, only the German version shall be decisive for the interpretation of the contractual regulations.