(14. October 2004)
 

1. All deliveries, services and offers of MAGIX AG are made exclusively on the basis of these General Conditions of Sale and Delivery and the applicable End-User License Agreement (EULA) of MAGIX AG, provided software and/or audio/video content (A/V Content) are delivered. The General Conditions of Sale and Delivery and the EULA shall apply to all current and future business relations, contracts, deliveries and other services even if these conditions are not expressly agreed upon again.

2. These conditions shall be considered accepted at the latest when a delivery or a partial delivery or service is accepted.

3. General Terms and Conditions of the other contracting party, in particular conditions of purchase, are hereby rejected even if MAGIX does not expressly object to them again. The same shall apply if MAGIX performs its obligations even though it knows about conflicting General Terms and Conditions of the contracting party.

4. Deviations from these General Terms and Conditions shall be valid only if they have been confirmed in writing by MAGIX.

1. The offers made by MAGIX are without obligation, subject to confirmation and subject to the receipt of supplies by MAGIX from its own suppliers and manufacturers.

2. Offers shall be considered accepted and orders placed if MAGIX confirms this in writing or by fax. The same applies to supplements, modifications or subsidiary agreements. If delivery is performed immediately, the written confirmation can also be replaced by the invoice.

3. In case of downloading software or A/V Content, a purchase agreement, based on these conditions in compliance with the e-EULA for the requested Software and/or A/V Content, will appear before the electronic transfer to the requesting party.

4. The contracting party is entitled to cancel its order within a two (2) week period; e-versions and encoder upgrades are excluded. The right to cancel an order does not apply to dealers as within the meaning of the German Commercial Code (HGB), if the acquisition and receipt of goods from MAGIX is a commercial act as within the meaning of Articles 343 ff. HGB.

5. The period to cancel order starts with the receipt of delivery by the contracting party. The cancellation deadline is deemed observed if the notice of order cancellation or the delivered goods are sent to MAGIX in due time. The notice of order cancellation does not have to be signed or include any explanation. An order for MAGIX products may not be cancelled if the products are tailored specifically to the individual requirements of the customer or if the delivered data carriers have been unsealed. In addition, the right to cancel order does not cover any services, which the customer had requested on its own as pursuant to Art. 312 d III German Civil Code (BGB) and MAGIX has already begun to carry out within the cancellation period, and deliveries, which are not suitable for returning as pursuant to Art. 312 d IV BGB, e.g., electronic versions.

In case of a service, your right of cancellation expires prematurely if the contract from both sides is fulfilled at your wish before you have exerted your right of cancellation. If you are a businessman as stated in Paragraph 14 of the German Civil Code, the right of cancellation does not apply to contracts made in order to fulfill your business or freelance duties.

6. Upon asserting its right to cancel order, the customer is obliged to return the goods received and to delete any copies of program. If the value of goods ordered is less than $50.00, the customer shall return the goods at its own expense, unless the goods delivered are not what the customer ordered or are of incorrect quantity. The customer undertakes to return any benefits acquired through use or to provide compensation for value of the acquired benefit. The customer shall replace the value of the goods in case of their deterioration or destruction as a result of ordinary negligence or by accident.

7. The employees of MAGIX are not authorized to enter into verbal subsidiary agreements or give verbal assurances which go beyond the content of the written contract.

8. If the other contracting party exceeds its credit limit with a request for delivery of ordered goods, MAGIX shall be released from its delivery obligation.

9. For contracts which are performed over several deliveries, each delivery shall be regarded as a special transaction.

1. Unless otherwise specified, MAGIX shall be bound to the prices mentioned in its offers for 14 days from the date of offer. The prices specified in the order confirmation of MAGIX shall be authoritative. Additional deliveries and services shall be charged separately.

2. All prices are quoted in the currency referred to on the invoice, subject to VAT at the rate applicable on the day of delivery ex MAGIX warehouse or, in case of direct mail orders, from the German border or German port of import, and do not include shipment, packaging, transport packaging and transport insurance unless otherwise specified.

3. Payment shall be rendered in cash or by way of check or bank remittance or credit transfer, unless expressly agreed otherwise. Unless otherwise specified, no cash discount shall be granted. Discounting of bills is excluded.

4. Notwithstanding conflicting provisions of the other contracting party, MAGIX shall be entitled to offset payments against the other party's older debts. If MAGIX has already incurred costs or interest, it shall be entitled to offset the payments first against the costs, then against the interest and last of all against the principal performance. MAGIX shall inform the other contracting party about this.

5. A payment shall be considered effected only when MAGIX can dispose of it.

6. Checks shall be accepted only on account of performance and shall operate as payment only after they have been honored.

7. Unless otherwise agreed in writing, all invoices must be paid immediately after they are received. The payment conditions specified on the invoice shall be applicable.

8. If execution measures are issued against the other contracting party, the other contracting party defaults in payment or culpably fails to observe other significant contractual obligations or if MAGIX comes to know about circumstances which could significantly deteriorate the credit standing of the other contracting party, in particular cessation of payments, pendency of judicial or extrajudicial composition or insolvency proceedings, then possibly existing agreements on payment targets shall lose their validity. In such cases MAGIX can demand immediate performance, repudiate the contract with the other contracting party and/or demand compensation for damage instead of performance or withhold outstanding deliveries or services or perform them only against advance payment or securities.

9. The other contracting party shall be entitled to offset counterclaims or exercise a right of retention only if the counterclaims are non-appealable or undisputed.

1. Dates and terms of delivery will be without commitment unless expressly agreed otherwise in writing.

2. The specification of terms of delivery and delivery dates by MAGIX is subject to correct and punctual receipt of supplies by MAGIX from its own suppliers and manufacturers.

3. Delays in deliveries and services due to force majeure and other unforeseeable events which make it significantly difficult or impossible for MAGIX to perform the delivery and for which MAGIX is not responsible (such events include in particular war, armed conflicts, raw material scarcity, official orders, non-grant of export, import and transit permits, national measures for limiting trade, strikes, lockouts and other similar serious breakdowns, traffic disruption, irrespective of whether these events affect MAGIX, its suppliers or sub-suppliers) shall entitle MAGIX to postpone the delivery or service by the duration of obstruction plus a reasonable start-up period or to completely or partially repudiate the contract - in so far as it has not yet been performed. If there are any delivery problems, MAGIX shall inform the other contracting party about them without any delay. The delivery deadline shall also be prolonged by the period by which the other contracting party delays the performance of its contractual obligations.

4. If the obstruction lasts longer than three months, the other contracting party shall be entitled to completely or partially repudiate the contract - in so far as it has not yet been performed - after granting an appropriate grace period (at least 14 days) unless it proves that it had completely lost interest in the performance of the contract earlier itself because the deadline had expired.

5. If the delivery period is prolonged on the basis of point no. 3 or if MAGIX is released from its obligations, a compensation claim against MAGIX is excluded unless MAGIX must incur liability according to clause IX.

6. If MAGIX is responsible for not observing delivery periods and deadlines which had been confirmed as binding or delays the performance of deliveries or services, the other contracting party shall be entitled to a compensation for damage resulting from delay of 0.5% for each completed week of delay, however not more than 5% of the invoice value for the deliveries and services which are affected by the delay, if the other contracting party or MAGIX do not prove that a lower or higher damage was caused.

7. MAGIX shall be entitled to effect partial deliveries and render partial services if this does not result in any disadvantages with regard to the use. In case of supply contracts, each partial delivery and partial service shall be regarded as an independent performance.

8. If the quantity of goods at the disposal of MAGIX is not sufficient for satisfying all contracting parties, then MAGIX shall be entitled to make equal reductions in all delivery obligations. MAGIX shall be released from delivery obligations which go beyond the aforesaid.

V. Delay in acceptance by the other contracting party

1. MAGIX shall be entitled to store the delivery items at the risk and expense of the other contracting party for the duration of the delay in acceptance by the latter. MAGIX can engage a forwarding company or another warehouse for this purpose.

2. The other contracting party has to pay MAGIX a flat charge of 1% of the purchase price per month, however not more than $150.00, for the duration of delay in acceptance to reimburse the storage costs without any further proof being required. The contracting parties are free to furnish proof of higher or lower storage costs.

3. If, after expiration of an additional period granted to the other contracting party, it refuses to accept the delivery items or states that it does not want to take delivery of the goods, MAGIX can refuse to perform the contract and demand compensation for damage instead of performance.

4. Where MAGIX is entitled to repudiate the contract and exercises this right, it shall be entitled to a flat-rate compensation for damage of 50% of the purchase price / order value for the incurred expenses, without having to specify the damage in detail, unless the contracting parties furnish proof of a higher or lower damage.

1. The risk shall pass to the other contracting party as soon as the consignment has been surrendered to the person responsible for transporting it or has left MAGIX's warehouse for being shipped.

2. If the other contracting party accepts the goods from the forwarding or transporting agent, it shall be regarded as proof of quantity, flawless packaging and shipment.

3. If shipment is delayed or becomes impossible through no fault of MAGIX, the risk shall pass to the other contracting party when it is informed about the readiness for shipment.

4. If MAGIX agrees to bear the transportation costs in an individual case, this shall have no effect on the passage of risk.

5. The customer assumes any risk upon concluding the download process, if the program is acquired by means of download.

1. MAGIX is obliged to provide goods or services without quality defects or legal deficiency in title to the other contracting party. The goods or services will be free from quality defects if they have the quality mentioned in the corresponding technical specification of the product description under consideration of the End User License Agreement and correspond to the applicable industrial standards. Any other or additional qualities and/or characteristics or a purpose which goes beyond the aforesaid have not been agreed. In particular, drawings, illustrations, measurements, weights, technical data, program descriptions, demo programs and other data must be regarded as approximate information and do not constitute a quality assurance unless they have been expressly specified as binding in writing.

2. Information in prospectuses and other documents is not a guarantee within the meaning of the German Civil Code (BGB). Guarantees shall be valid only with an express and written confirmation by MAGIX.

3. The copyrights of MAGIX to a product do not constitute legal deficiencies in title within the meaning of legal regulations.

4. Warranty claims shall become statute-barred 12 months after delivery.

5. The warranty period shall begin when the goods leave their place of departure.

6. The warranty does not cover natural wear and tear.

7. Insignificant deviations from the technical specification shall not give rise to warranty claims.

8. With regard to the software, MAGIX does not warrant that the program functions meet the requirements of the other contracting party or can operate with other programs in the option chosen by the other party. It is not possible to completely rule out errors in data processing programs in all areas of application with the current state-of-the-art technology. Therefore, the subject-matter of all contracts concluded with MAGIX is a software which is usable as specified in the product description. MAGIX shall not undertake warranty for the choice, installation and use of the software and for the results pursued with it. The other contracting party shall be responsible for proper installation of the software. The installation of the software as well as familiarization and training of the other contracting party or its employees by MAGIX are not included in the scope of performance. Such services must be separately agreed upon in writing and shall be charged separately.

9. If the operating and maintenance instructions of MAGIX are not observed, modifications are made, parts are replaced or expendable material which does not correspond to the original specification is used, all warranty shall become void where the defect is caused by the aforesaid. This shall apply also if the defect is caused due to improper use, storage and handling of the products or improper interference by third parties, unless the other contracting party proves that the defect was not caused by the modifications or interference when it notifies the defect.

10. If the goods or the service do not have the agreed quality, the other contracting party is first entitled to claim subsequent performance. MAGIX shall have the right - if the other contracting party is an entrepreneur- to choose between removing the defect and delivering goods which do not have any defects. If subsequent performance is connected with unreasonable expenses for MAGIX, then MAGIX shall be entitled to refuse subsequent performance. MAGIX has the right to make two attempts at remedying the notified defect. The other contracting party shall grant MAGIX a reasonable period for subsequent performance.

11. Further rights may be asserted only if the reasonable period for subsequent performance granted by the other contracting party expires without any positive results.

12. The other contracting party may demand reduction of remuneration only after the reasonable period granted for the second attempt at subsequent performance expires without any positive results. The prerequisite for the right to repudiate the contract is that the other contracting party, in addition to setting a deadline, threatens that it will not accept the performance by MAGIX.

13. MAGIX can make modifications, in particular construction and form related modifications, in the goods and services in so far as these modifications are not fundamental and only insignificantly limit the contractually stipulated purpose. Modifications in construction or design shall correspond to the state-of-the-art technology. Such modifications which are made by MAGIX or its suppliers after the conclusion of the contract and which do not impair the ability of the delivery item to function properly shall not entitle the other contracting party to make complaints.

14. Only the direct contracting party is entitled to warranty claims against MAGIX; warranty claims are non-transferable.

1. If goods are delivered, the other contracting party must check immediately after receipt whether the delivery is complete and the goods have any apparent defects.

2. If a notice of defects in writing or by fax is not received by MAGIX within six calendar days after the receipt of goods, the goods will be considered properly and completely delivered unless there is a hidden defect.

3. Hidden defects, i.e. defects which cannot be determined immediately even with careful inspection and cannot be detected within the above mentioned period, must be notified in writing to MAGIX as soon as they are detected.

4. No warranty shall be given if defects which have been discovered by the other contracting party are not notified to MAGIX without any delay or within the period specified under clause VIII, point 2, or if the defective goods have been completely or partially resold.

5. No warranty shall be given if the defective goods have been processed or used by the other contracting party even though the defect had been detected.

6. To assert a warranty claim, the other contracting party must send or deliver the supplied goods to MAGIX with a precise description of the defect, specification of product name and a revision number given by MAGIX, the serial number and a copy of the delivery note with which the product was delivered.

7. The products must be sent prepaid to MAGIX and will be sent back freight collect by MAGIX unless the transportation costs are unreasonably high w.r.t. the order value.

8. No new warranty periods shall enter into force if the goods are replaced.

9. The warranty is limited to repair or replacement of only those delivery items for which the complaint was made.

10. If the other contracting party sends the products for which a complaint was made, it shall be responsible for ensuring that the data on these products is stored on backup copies as this data could get lost.

1. MAGIX shall be liable for the damage caused by it or by ordinary persons employed by it in performing an obligation in cases of ordinary negligence - also in case of non-contractual liability - only if an obligation whose observance is particularly important for achieving the purpose of the contract (cardinal obligation) is not fulfilled as well as in cases of fatal injury, physical injury and health hazards.

2. For non-observance of a cardinal obligation, the liability is limited to the damage which must be typically expected within the scope of this agreement if there is no intention or gross negligence or if MAGIX must incur liability because of fatal injury, physical injury or health hazards.

3. Contractually stipulated compensation claims of the other contracting party against MAGIX shall become statute-barred 12 months after delivery.

4. The liability based on the product liability law (Produkthaftungsgesetz) shall not be affected by the aforesaid.

5. In case of loss of data MAGIX shall be liable only for the amount of reconstruction expenses which would have been required if backup copies had been made.

6. MAGIX shall not be liable for damage which can be controlled by the other contracting party or which the other contracting party could have prevented by taking measures which can be reasonably expected of it.

1. MAGIX shall retain the title to the contractual objects (e.g. data carriers, manual etc.) until all its claims based on the contract have been settled completely. If the other contracting party is a legal entity under public law, special asset under public law or an entrepreneur acting in his capacity as a trader or self-employed person, MAGIX shall, in addition to the aforesaid, retain the title to the contractual objects until the claims which are based on the current business transaction and to which MAGIX is entitled in connection with the contract are fully satisfied.

2. MAGIX shall undertake - if demanded by the other contracting party - to release the securities to which it is entitled according to the above mentioned conditions at the option of the other contracting party in so far as the realizable value of the securities continuously exceeds the claims to be secured by more than 20%, if the claims have not been settled.

3. The other contracting party shall be entitled to process and sell the goods which are supplied under retention of title in the ordinary course of business as long as it does not default in payment. Pledges or transfers by way of security are not permissible.

4. The other contracting party hereby assigns the claims (including all balance claims from current account, claims for possession) arising due to the resale of goods supplied under retention of title or due to a different legal ground (insurance, tort etc.) related to these goods in full amount to MAGIX in order to provide security.

5. MAGIX irrevocably authorizes the other contracting party to collect the claims assigned to MAGIX in its own name and for its own account. The direct debit authorization can be revoked only if the other contracting party does not duly perform its payment obligations.

6. If third parties have access to the goods supplied under retention of title, the other contracting party must immediately inform MAGIX in writing and point out the property of MAGIX to the third parties.

7. If the other contracting party defaults in payment or culpably fails to perform other significant contractual obligations, MAGIX shall be entitled to take back the goods supplied under retention of title.

8. If MAGIX seizes or distrains the goods supplied under retention of title, this shall not constitute a repudiation of contract if the other contracting party is a merchant and § 503 BGB cannot be applied.

9. If MAGIX asserts the retention of title, the right of the other contracting party to continue using the software shall expire.

10. Processing or reworking shall always occur on behalf of MAGIX as the manufacturer within the meaning of § 950 BGB without obligating MAGIX. If the goods supplied under retention of title are processed or combined with other goods, MAGIX shall always acquire co-ownership to the new object in proportion of the value of the goods supplied under retention of title to the value of the other goods in case of processing. If the buyer becomes the sole owner, he now itself grants co-ownership in the aforementioned proportion to MAGIX and shall keep the object in safe custody, free of charge, for MAGIX. If the goods produced by processing or combination are resold, the agreed advance assignment shall apply only to the value of the goods supplied under retention of title. If the goods supplied under retention of title are used for performing a contract for work or a contract for work and materials or the other contracting party stores the data on data carriers delivered by MAGIX under retention of title, points 4 and 5 of this clause shall apply accordingly.

1. Claims against MAGIX may not be assigned to third parties without the express consent of MAGIX.

2. If the claims in question are not such claims which are non-assignable under all circumstances, in particular claims specified under clause VII, point 14, of these General Terms and Conditions (warranty claims), the consent must be granted if the other contracting party furnishes proof of significant interests which outweigh the interests of MAGIX in adhering to the prohibition of assignment.

1. If software, software descriptions, music, or films in audio or computer format or other copyrighted items are a part of the scope of delivery and the item is supposed to be handed over to a contracting party for use, the contracting party shall be granted a single, nonexclusive right of use in accordance with the applicable MAGIX End-User License Agreements (MAGIX EULA, e-EULA, Lease-EULA) for the respective item. The EULAs can either be retrieved from MAGIX's Internet presence (www.magix.com) or are included with the product or are available on the CD-ROM.

2. The other contracting party undertakes to observe the EULA, in particular the use-related restrictions in the EULA, while using the products. If this agreement is violated, the other contracting party shall be liable for the complete amount of damage occurring as a result of this violation. For instance, the EULA lay down the following: the right to reproduce, multiple usage, program modifications, copyrights and industrial property rights.

3. MAGIX vouches that, in the territory covered by the contract, the contractual products of MAGIX are free from industrial property rights of third parties which could exclude or restrict the use by the other contracting party. This shall not apply if the other contracting party uses a product which has not been released by MAGIX or uses the product after it has been modified by a party other than MAGIX, or if it uses the product under conditions which differ from the contractually agreed conditions of use.

4. If software products of manufacturers other than MAGIX are surrendered, the license provisions of the manufacturer with regard to the scope of use of the software allowed by copyright, in particular with regard to the restrictions on the use of the software, must be observed in addition to these General Terms and Conditions.

All deliveries performed by MAGIX and services rendered by it to resellers shall exclusively serve the purpose of distribution in their own name and for their own account unless a different provision has been agreed upon in an individually negotiated contract.If the scope of delivery includes copyrighted items, only a simple, non-exclusive, non-transferable right for the purpose of resale and no right of use over the copyrighted items shall be granted to the other contracting party. However, MAGIX shall grant the other contracting party the right to surrender the copyrighted item to the final customer within the scope of use described under clause 12.

The other contracting party is obliged to maintain secrecy for an unlimited period about all information and data to which it has access in connection with the deliveries and its business relationship with MAGIX and which are clearly business or company secrets of MAGIX due to other circumstances and must be kept confidentially; the other contracting party is obliged to neither record the aforementioned information and data, nor hand them over to third parties nor utilize them in any way unless this is necessary to achieve the purpose of the contract.

MAGIX shall be entitled to enclose advertising mail and other printed material such as comparison tests and newspaper reports, irrespective of whether they belong to MAGIX or to third parties, with the products.

The orders are processed with the help of automatic data processing. The other contracting party hereby grants its express consent to MAGIX to store and process the data which becomes known in connection with contractual relationships and which is necessary for processing the order in accordance with statutory provisions on data protection.

1. The General Terms and Conditions and all legal relationships between MAGIX and the other contracting party shall be governed by the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.

2. If the other contracting party is a merchant within the meaning of the German Commercial Code, legal entity under public law or special asset under public law or does not have its headquarters in the Federal Republic of Germany, Berlin shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

3. Lübbecke shall be the place of performance.

4. If MAGIX software is sold or transferred in any other way, the regulations of the corresponding MAGIX End User License Conditions (EULA), which are an integral part of these General Terms and Conditions, shall apply additionally. If there are any doubts and / or conflicting regulations, the clauses in these General Terms and Conditions shall have priority over the regulations in the EULA.

5. If the contracting parties have entered into individually negotiated written agreements whose regulations conflict with these General Terms and Conditions or with the EULA, the regulations in the individually negotiated contracts shall be authoritative.

6. Versions of these General Terms and Conditions in languages other than German must only be regarded as translations. If there are interpretation problems and language-related discrepancies between the foreign language version and the German version, the German version of these General Terms and Conditions shall be authoritative.

1. Online coupons can be sent to MAGIX customers via email as part of a special coupon, discount or sales promotion. Such coupons may only be redeemed by the customer identified by the customer number in the MAGIX Online Shop at www.magix.com. Unfortunately, redeeming a coupon within the MAGIX Online Services, for example, the MAGIX Online Album, MAGIX Website Maker etc., is not possible.

2. Coupons can only be used on future orders in the MAGIX Shop. They cannot be redeemed on the offer with which they were acquired.

3. To redeem the online coupon, enter the coupon's activation code in the corresponding box when placing your order and click on the "Redeem" button to confirm. The coupon cannot be applied to previous purchases.

4. It is possible to acquire and redeem several coupons, but only one coupon may be used with each order. Multiple coupons cannot be combined on one order. Online coupons may only be redeemed at the MAGIX national e-shop that originally issued the online coupon.

5. If an online coupon is acquired through a product purchase, the online coupon will be sent to the email address entered during the order process on the date of the order. Unless otherwise stated, MAGIX online coupons are valid for one year from the date of issue.

6. MAGIX will credit the value of the coupon for qualifying purchases made before the expiration date. The online coupon can no longer be redeemed once the indicated expiration date has passed. Qualifying purchases are limited to the products and services as indicated on the online coupon. Online coupons can be redeemed on all MAGIX products offered in the product range. Excluded from this are offers from other manufacturers (hardware or software) as well as offers and encoders with reduced pricing, unless this use is expressly stated on the coupon.

7. Coupons may not be redeemed for cash. Coupons may not be sold.

8. If the value of the coupon is greater than the total amount ordered, the remaining balance of the coupon is forfeited upon placement of the order.