Art. 1 Applicability
(1) The present General Terms and Conditions shall apply to all business relations between Schott Music & Media GmbH, Mainz (SMM), and its customers, as defined at the time of conclusion of the contract and as far as these refer to business transactions carried out by electronic means.
(2) These General Terms and Conditions shall apply exclusively. Conflicting conditions of the customer or conditions differing from those indicated in our General Terms and Conditions cannot be accepted, unless approved of by SMM in writing in individual cases.
Art. 2 Formation of Contract
(1) The description of our range of products on the Internet just serves to inform the customers. It is no offer to conclude a contract within the meaning of Art. 145 German Civil Code. Contractual obligations, e.g. within the meaning of a delivery guarantee, do not arise from that for SMM.
(2) By sending an order to SMM, the customer offers to conclude a contract. SMM can accept such an offer within two weeks by sending a message confirming the offer (by e-mail) or by delivering the ordered goods within this term. If individual information on the range of products on the web site is faulty, SMM shall inform the customer separately after receipt of the order and submit an appropriate counter-offer to him.
Art. 3 Right of Withdrawal
(1) The customer shall be entitled to withdraw his declaration of intention to conclude a contract within two weeks after receipt of the goods by returning the goods to SMM. To comply with this term, it is sufficient to dispatch the goods in time.
(2) The charges for the return of the goods of up to EUR 40,- shall be the responsibility of the customer.
(3) In the case of withdrawal, SMM shall refund the purchase price, if already paid, to the customer. The return charges paid by SMM will be deducted from the purchase price. With refunds to foreign countries, the transfer fee will be deducted as well.
(4) In the case of a considerable deterioration in the quality of the goods or in the case of loss, the customer shall make good the corresponding reduction in value or loss to SMM if he withdraws his order. If the customer has already paid the purchase price, SMM shall be entitled to deduct the reduction in value from the amount repayable.
(5) The right of withdrawal shall be barred in the following cases:
a) with contracts for the delivery of audio or video recordings or software if the delivered data carriers have been unsealed by the customer;
b) with contracts for the delivery of goods manufactured according to customer’s specifications within the meaning of Art. 3 paragr. II No. 2 Mail Order Marketing Act, or of goods unsuitable for returns, such as antiquarian items;
c) with contracts on other deliveries barring the right of withdrawal expressis verbis.
Art. 4 Delivery of Ordered Goods
(1) SMM shall deliver the ordered goods to the address indicated by the customer in the order as soon as possible. SMM shall be entitled to make partial deliveries.
(2) The costs for the individual deliveries shall be charged to the customer by SMM in the respective amount shown.
(3) Information on the terms of delivery shall not be binding, unless specifically otherwise agreed.
Art. 5 Reservation of Ownership
Until complete settlement of all claims against the customer the delivered goods shall remain the property of SMM.
Art. 6 Maturity and Payment of Purchase Price
(1) The purchase price shall be due upon conclusion of the contract.
(2) Payment shall be made either by direct debiting (only in Germany) or by credit card. SMM shall act in accordance with the customer’s wishes regarding the mode of payment.
(3) If the customer is in default of payment, SMM shall be entitled to charge default interest at a rate of 5% per year over the base lending rate in accordance with Art. 1 Discount Rate Transition Law of 9 June 1998 (BGBl. I S. 1242).
(4) The customer shall only be entitled to set-off if his counterclaims have been recognized by declaratory judgment.
Art. 7 Warranty of Quality
(1) SMM shall be liable for any defects existing upon delivery of the goods for the statutory warranty period.
(2) The customer is faced with the choice between SMM's subsequent performance in the form of repair or replacement. We are entitled, however, to refuse the type of subsequent performance chosen by the customer if disproportionately high costs are associated with such type of performance and if no substantial disadvantage ensues to the customer from the other type of subsequent performance. During the period of subsequent performance, the reduction of the purchase price or the withdrawal from the contract by the customer shall be excluded. A subsequent performance shall be deemed a failure after the second unsuccessful attempt, unless something else follows from the nature of the matter or defect or from other circumstances. If the subsequent performance has failed or if we have refused the subsequent performance altogether, the customer can demand either the reduction of the purchase price (decrease in value) or the withdrawal from the contract.
(3) The customer cannot claim damages for the defect on the following conditions until the subsequent performance was a failure or we refused any subsequent performance. The right of the customer to claim any further damages on the following conditions shall remain unaffected.
(4) Notwithstanding the aforementioned provisions and the following restrictions on liability, we shall have unlimited liability for damages or injuries to life, body and health caused by negligence of or caused intentionally by our legal representatives, vicarious agents or assistants, as well as for damages covered by the liability under the German Product Liability Act, as well as for any damages resulting from a breach of contract caused wilfully or by gross negligence or fraudulent intent by our legal representatives, vicarious agents or assistants. If we have given a guarantee on the quality and/or durability of the goods or parts of them, we shall also be liable within the scope of this warranty. However, we shall only be liable for damages arising from the lack of the guaranteed quality or durability, but being not directly related to the goods, if the risk of such damages is apparently covered by the guarantee on the goods' quality and durability.
(5) We shall also be liable for damages caused by slight negligence, provided that such negligence concerns the infringement of contractual obligations the fulfilment of which is of particular importance for the attainment of the contract's purpose (cardinal obligations). We shall only be liable, however, if the damages are typically related to the contract or foreseeable. In the event of infringements of non-substantial secondary obligations caused by slight negligence, we shall not be liable. The restrictions on liability mentioned in sentences 1-3 shall also apply as far as the liability for the legal representatives, executive staff and other vicarious agents and assistants are concerned.
(6) Any further liability shall be excluded, notwithstanding the legal nature of the asserted claim. In so far as our liability is excluded or limited, this shall also apply to the personal liability of our staff, representatives, vicarious agents and assistants.
Art. 8 Privacy
All personal information of our customers will be treated confidentially. These information shall only be stored and processed to such extent as permitted by the customer and in strict observance of relevant rules and regulations, such as the Federal Data Protection Act or the Information and Communication Service Act. The transfer of such information to third parties who are neither involved in the performance of the contract nor are - like SMM - affiliates of SCHOTT MUSIC GmbH & Co. KG, Mainz, shall be excluded. SMM shall be entitled to transfer personal information of the customers to affiliates of SMM for the purpose of credit checking and credit control as part of a data exchange. SMM shall also be entitled to transfer personal information to the SCHUFA, the General Credit Protection Agency in Germany.
Art. 9 Final Provisions
(1) These General Terms and Conditions are governed by the laws of the Federal Republic of Germany, to the exclusion of the CISG (United Nations Convention on Contracts for the International Sale of Goods).
(2) The nullity of any of the provisions herein shall affect neither the validity of the Agreement as such nor the validity of these General Terms and Conditions.
21.11.2006
Print