General Terms and Conditions

§ 1
Scope

The following terms and conditions shall apply exclusively to all deliveries. Any different or varying terms are rejected unless expressly accepted by us in writing.

Our General Terms and Conditions shall still apply, even if we carry out deliveries to the customer without reservation, despite having knowledge of different or varying terms.

§ 2
Formation of contract

2.1    Our display of products on this site shall not comprise an offer by us to enter into a sales contract on that basis; it is an invitation to the customer to make an offer to buy.

2.2    By clicking on the button “Send order” the customer makes a binding offer. We will immediately send an email order confirmation to the customer after the order has been submitted. We may accept the customer’s offer by either (at our option) sending the relevant confirmation within a reasonable period of time, or by sending the ordered goods to the customer within a reasonable deadline. Said confirmation may be given in writing, by fax, or by email.

2.3    The contract is entered into on our part by:
Musik Schmidt – Branch office of s-music GmbH & Co. KG
Hanauer Landstraße 338, 60314 Frankfurt am Main
Registered at the Mannheim District Court under HRA 702307

hereinafter referred to as “Musik Schmidt”

2.4    We reserve the right not to provide the promised goods or services, if it should transpire after conclusion of contract that said goods are not available, even though the parties have entered into the relevant contract of sale. In such case the customer will be promptly notified. Any payments made so far will be promptly refunded. Any other claims against Musik Schmidt shall be excluded.

§ 3
Prices

3.1    All prices are payable in cash inclusive of value-added-tax at the statutory rate plus any packaging and transportation costs. We may charge shipping costs in addition to the purchase price when dispatching the goods; said costs will be communicated to the customer during or prior to the order process. The customer will be required to pay additional customs duties and charges for deliveries to third countries (outside the EU).

3.2    For contracts with delivery times exceeding four months we reserve the right to increase prices based on price increases arising from collective agreements or material price increases. The customer may withdraw from the contract if the increase is higher than 5% of the agreed price.

3.3    Payment may be made by cash on delivery, credit card, in advance or by online bank transfer. The customermay only choose between cash on delivery or credit card payment for international deliveries.

§ 4
Delivery

4.1    Shipments in Germany are usually sent via UPS or DHL. Bulky or particularly heavy goods are shipped via freight forwarder. If the customer selects cash on delivery, payment by credit card, or online bank transfer as payment method, shipments in Germany with an order value over 25.00 EUR will be delivered free of charge. Orders under 25.00 EUR will incur a delivery charge of 4.95 EUR. Cash on delivery items will incur an additional charge of 5.95 EUR independent from the order value. Shipping costs for other countries are listed under Shipping costs.
4.2    Particularly bulky and heavy items (pianos, drums, PA speakers, etc.) may incur     higher shipping costs. We will be happy to communicate such costs individually upon     the customer’s request, or immediately after receiving the customer’s order.

4.3    If the customer is an entrepreneur as defined in Section 14 BGB (German Civil Code), shipment will always be made at the customer’s risk. Any risk of loss or deterioration shall be transferred to the customer as soon as we duly handed over the goods to the freight forwarder.

4.4    If the customer is an entrepreneur as defined in Section 14 BGB (German Civil Code) it shall be obliged to inspect the goods for any in-transit damage immediately after having taken delivery of the goods. If the packaging is damaged the customer shall have the forwarder give a written confirmation for such damage upon accepting the goods.

4.5    All goods are covered by goods-in-transit-insurance. Said cover is provided without any extra cost to the customer. We will hand over the goods to the freight forwarder in appropriate packaging.

4.6    If the customer is a consumer as defined in Section 13 BGB (German civil Code), mandatory statutory provisions shall apply instead of Sections 4.3 and 4.4 hereunder.

4.7    In the event of any apparent in-transit damage, customers who are consumers as defined in Section 13 BGB (German civil Code) shall be obliged to notify us of said damage within two weeks. In this context “apparent“ indicates a defect that is so clearly visible that even an average the customer without any special know-how would notice it without deliberately seeking out such defect. If the customer has failed to notify us of such defect within said period, the customer shall waive any claims in respect of such damage.

§ 5
Right of withdrawal

Instructions on consumer’s right of withdrawal

5.1     Statutory right of withdrawal

    If the customer is a consumer as defined in Section 13 BGB (German Civil Code) the customer may withdraw from its contractual declaration, without stating grounds, within two weeks in written form (e.g. by letter, fax or email) or by returning the item, provided the customer received the item prior to the expiry of said period. Said period shall commence upon receipt of these instructions in written form, yet not before the customer takes delivery of the goods, nor before we have performed our duty to furnish instructions in written form pursuant to Section 312 c (2) BGB (German Civil Code) in conjunction with Section 1 (1), (2) and (4) BGB-InfoV (German Civil Code: Duty to Inform Regulation). Sending the notice of withdrawal or returning the item in due time shall be sufficient to observe the withdrawal period. The notice of withdrawal shall be sent to:

    Musik Schmidt – Branch office of s-music GmbH & Co. KG
    Hanauer Landstraße 338, 60314 Frankfurt am Main

5.2    Consequences of withdrawal
    In the event of effective withdrawal any payments or goods received by either party shall be returned and any gains derived (e.g. interest) surrendered. If the customer is unable to return all the goods received, returns only some of the goods, or returns goods in a deteriorated state, the customer shall compensate us up to the value of the goods, where applicable. This shall not apply if the deterioration of an item is solely due to an inspection that the customer would have been able to carry out, for instance, in a store. In any case, the customer may avoid its duty to pay compensation for any deterioration that would be caused by normal operation of the product by not using the item as if the customer owned it and by refraining from any acts that might diminish its value. Items that can be shipped by parcel post shall be returned at our cost and risk. The customer shall bear the costs of the return shipment if the goods were delivered as ordered and if the price of the item to be returned is not over EUR 40.00, or if payment or an agreed partial payment for an item with a higher price has not yet been effected by the customer at the time of withdrawal. Other than that, the return shipment is free of charge for the customer. Items that cannot be sent by parcel post will be picked up at the customer’s site. Any obligations to refund any payments made shall be met within 30 days. Said period shall commence for the customer upon sending its notice of withdrawal or returning the item, and for us upon the receipt thereof.

5.3    Credit agreements linked to the purchase of goods
    If the customer financed this contract through a loan and withdraws from the financed contract, the customer is no longer bound by the loan contract, provided that both contracts form a commercial unit. This would appear to be the case where we are simultaneously the customer’s lender, or if the customer’s lender cooperates with us for the purpose of granting a loan. If the loan has already been transferred to us at the time the withdrawal became effective, the customer’s lender shall assume our rights and obligations arising from the financed contract in relation to the customer with regard to the legal consequences of the customer’s withdrawal or return of goods. If the customer wishes to avoid contractual obligations to the greatest extent possible, both contractual declarations should be withdrawn individually.

End of instructions on consumers’ right of withdrawal

5.4    No right of withdrawal
    The right of withdrawal pursuant to Section 312 d (4) BGB shall not apply for distance     contracts governing

the delivery of goods manufactured according to the customer’s specifications, or clearly tailored to the customer’s personal requirements, or goods which are not suited for return shipment due to their nature, or might perish within a short period of time, or whose use-by date has expired.

the delivery of audio, video or software media, if the consumer has unsealed the delivered media,

-    the delivery of newspapers, periodicals, or magazines.

§ 6
33-day return policy

6.1    In addition to the statutory right of withdrawal within 14 days we offer a 19-day extended return policy (a total of 33 days) to customers who are consumers as defined in Section 13 BGB. A customer may return the goods received from us within 33 days without stating any reason. Said period shall commence after receipt of instructions on the right of withdrawal in written form (e.g. letter, fax, email) and after receipt of the goods, and after we performed our legal duty to furnish information as set out in Section 312 c (2) BGB in conjunction with Section 1 (1), (2) and (4) BGB-InfoV (German Civil Code: Duty to Inform Regulation). Returning the goods in due time shall be sufficient to observe said period. Customers may exercise the right to return goods in no other way than by returning the goods, unless the goods cannot be sent by parcel post. If goods cannot be sent by parcel post (e.g. bulky goods) the customer may notify us in written form (e.g. letter, fax, email) about its return request. Sending the return request in due time shall be sufficient to observe said period. The return shipment or return request shall be sent to:

    Musik Schmidt – Branch office of s-music GmbH & Co. KG
        Hanauer Landstraße 338, 60314 Frankfurt am Main

6.2    The cost and risk of returning goods under the 33-day return policy shall be borne by the customer.

6.3    Refunds under the 33-day return policy will not be issued for goods manufactured according to the customer’s specifications, yard goods, wear parts (e.g. strings, sticks, drumheads, cables, picks, reeds), newspapers, periodicals, magazines, for articles that are non-returnable for hygienic reasons (e.g. harmonicas), or for audio, video, or software media that have already been unsealed and/or registered after delivery. Furthermore, showroom models, used goods, goods identified as “return” and/or “sale” item, or goods paid for by the Musik-Schmidt Card (Comfort Card) do not qualify for the 33-day return policy.

6.4    If the customer exercises the 33-day return policy, we may request the customer to pay us an appropriate compensation for use for retaining the goods after the 14-day statutory time limit has ended. Furthermore, any customer returning goods under the 33-day return policy shall compensate us for any diminished value or the complete value of any goods where the customer is unable to return the goods in good condition, because the customer is responsible for the deterioration, or loss of the goods, or for any other impossibility of performance. This shall not apply if the deterioration of goods is solely due to an inspection that the customer would have been able to carry out in a store. In any case, the customer may avoid any duty to pay compensation by not using the goods as if the customer owned them and by refraining from any act that would diminish their value.

6.5    If individual items of a bundle or set are returned under the 14-day period of withdrawal or the 33-day return policy, we will charge the customer the regular sales price for any items retained by the customer.

6.6    Said provisions under Section 6 shall not affect the statutory right of withdrawal as set out under Section 5.

6.7    Customers may use either the 33-day return policy or the 66-day exchange policy only once for each item purchased.

§ 7
66-day exchange policy

7.1    Customers who are consumers as defined in Section 13 BGB have the option to return any item in our range within 66 days and exchange it for any other item by exercising our 66-day exchange policy. Said period shall commence upon receipt of instructions on the right of withdrawal in written form (e.g. letter, fax, email) and after receipt of the goods, and after we performed our legal duty to furnish information as set out in Section 312 c (2) BGB in conjunction with Section 1 (1), (2) and (4) BGB-InfoV (German Civil Code: Duty to Inform Regulation). The customer shall enforce the 66-day exchange policy by sending a written notice (e.g. via email, fax or by letter), or by returning the goods. The goods must be returned in perfect condition, without any signs of use, in original packaging, and free from any third party rights.
   
7.2    The cost and risk of returning goods under the 66-day exchange policy shall be borne by the customer.

7.3    No exchange will be issued for goods manufactured according to the customer’s specifications, yard goods, wear parts (e.g. strings, sticks, drumheads, cables, picks, reeds), newspapers, periodicals, magazines, or for articles that are non-returnable for hygienic reasons (e.g. harmonicas), or for audio, video, or software media that have already been unsealed and/or registered after delivery. Furthermore, showroom models, used goods, goods identified as “return” and/or “sale” item, or goods paid for by the Musik-Schmidt Card (Comfort Card) do not qualify for the 66-day return policy.

7.4    Any balance for the benefit of the customer arising from the exchange will be credited to the customer. The customer shall settle any balance for our benefit by prepayment, payment on delivery, or credit card payment as soon as exchange is issued.
7.5    Customers may exercise either the 33-day return policy or the 66-day exchange     policy only once for each item purchased.


§ 8
Best price guarantee

8.1    If any customer who is a consumer as defined in Section 13 BGB finds an identical product from our range within 7 days after the order placement date and if said product is offered at a lower price by a dealer providing the same service and authorized to sell said product, we will either, at our discretion, refund the difference or take back the purchased item free of charge by withdrawing from the purchase contract. This shall only apply, however, if the purchased item can be returned in perfect condition, without any signs of use, in original packaging and free from any third party rights. The provisions of the consumers’ statutory right of withdrawal for distance contracts shall remain unaffected.

8.2    To qualify for our best price guarantee the relevant item must be in stock for immediate delivery from the dealer at the time the customer requests a price match. Only products offered by authorized dealers domiciled in Germany qualify for our best price guarantee. Our guarantee does not apply to items offered on eBay auctions.

8.3    When ascertaining whether the quoted price of another dealer is lower than our price, the price calculation should also allow for the other dealer’s shipping costs, as we provide free shipping on orders of 25.00 EUR or more within Germany. Our best price guarantee does not apply where the lower price is the result of inaccurate prices, errors, or misprints.

8.4    Likewise, our best price guarantee does not apply to:
showroom models, used products, demo instruments, display stock, returns and auction items (e.g. offers on eBay).
large-scale discount promotions from competitors (e.g. anniversary sales, closeouts)
products manufactured by Apple.

§ 9
Delivery

We will endeavor to effect shipment immediately after the contract has been concluded, unless the delivery time is extended due to the information we have about our customer (website, email, etc.). Except as expressly provided to the contrary, we may make partial deliveries to the extent that this is reasonably acceptable for the customer. Should the customer desire subsequent changes, or if delivery is delayed for circumstances beyond our control, the delivery time shall be reasonably extended.

§ 10
Warranty and liability

10.1    No guarantee is provided for the quality of an item, unless expressly agreed in our order confirmation or advertisements.

10.2    The warranty period for any defects existing prior to the transfer of risk shall be 24 months for new goods and 12 months for used goods. Notwithstanding the foregoing sentence, the warranty period shall be 1 year from the transfer of risk if the customer is an entrepreneur as defined in Section 14 BGB. The warranty period shall commence upon receipt of goods by the customer.

10.3    In the case of justified complaints we will, at our discretion, repair or replace any defective items. In the event of defects in purchased items that are under our responsibility we shall assume all and any cost incurred to remedy the defect, including in particular transportation costs, tolls, travel allowance, as well as labor and material costs, to the extent that said costs are substantiated and that said cost are not unreasonably higher than the value of the purchased item.

10.4    Should we fail to remedy the defect or be unable or unwilling to provide subsequent performance, the customer shall have the right to cancel the contract, or to demand a lower purchase price (purchase price reduction).

10.5    Any defect or damage caused by negligent or improper handling, or improper installation, the use of incompatible accessories, or any modifications of original parts by the customer or a third party whose services we did not request shall be excluded from this warranty. The same shall apply for wear and tear due to use.

10.6    Any other claims for damages shall be excluded, unless the customer asserts such claims on the grounds of wilful intent or gross negligence committed by us, our legal representatives or vicarious agents, or in the event of the breach of any material obligation hereunder. Our liability for damages arising from death, bodily injury, or disease as well as our liability under the Product Liability Act shall remain unaffected. Our liability for damages shall be limited to the typical, foreseeable damage provided that we have caused no intentional breach of contract. Any liability for slight negligence in the event of a breach of non-material obligations shall be excluded. In any event, the customer shall be subject to the obligation to mitigate damages. Exclusion or limitation of liability shall not apply in the event of us having fraudulently concealed defects or assumed guarantee responsibilities for the quality of the item.

§ 11
Retention of title

11.1    We retain ownership of the goods delivered to the customer until we receive payment in full for them and for all other amounts owed to us by the customer. In contracts where the customer is a consumer as defined in Section 13 BGB we shall retain ownership of said goods until the purchase price has been paid in full.

11.2    If goods are attached or otherwise levied upon, the customer shall identify goods owned by us and immediately inform us in writing.

11.3    The customer may only process or transform the retained goods as agent for us. Should the customer incorporate the retained goods with other items not owned by us, we shall become co-owner of the new item at the time said other items are incorporated into the retained goods, with our co-ownership share being in the proportion that the value of the retained goods bears to the value of the other items that were incorporated. Should the customer mix the retained goods with other items not owned by us, we shall become co-owner of the new item at the time said other items are mixed with the retained goods, with our co-ownership share being in the proportion that the value of the retained goods bears to the value of the other items that were mixed into said goods. If the customer’s item shall be deemed to be the relevant item, the customer shall transfer the proportionate co-ownership to us. Upon the customer’s request we undertake to release the securities we are entitled to take, where the value of said securities exceeds 10 % of the claims to be secured.

§ 12
Force Majeure

Should we be prevented from meeting our delivery commitments due to the occurrence of events of Force Majeure or any other circumstances beyond our control, or should our performance of obligations become intolerable due to such reasons, we shall have the right to delay our performance of obligations, or to cancel the contract in whole or in part without incurring liability. We shall have the right to cancel the contract, even if we initially informed the customer about an extended delivery time.

§ 13
Applicable Law, Legal Venue

These General Terms and Conditions shall be governed by German law, to the exclusion of the CISG. If the customer is a merchant, legal person under public law, or public asset, or if the customer has no jurisdiction in Germany, the courts in Heidelberg shall have exclusive jurisdiction over disputes between the parties.

§ 14
Partial invalidity

If individual provisions of this agreement are not applicable, for any reason whatsoever, the validity of the remaining provisions shall not be affected.

§ 15
Liability for links

Courts have decided that website owners including links on their website may also be held responsible for the content of the linked page. According to court rulings, site owners are discharged from their responsibility only when stating expressly that the presence of links should not be construed as endorsement of any kind with regard to the content of the linked page. As we have no control over the design and content of the linked pages we expressly state that we do not endorse any sites expressing views that are xenophobic, glorify violence, are harmful to minors, or violate applicable law in any other way.
Any liability for damages caused by downloads, executing programs, scripting, plug-ins, or any other components shall be excluded.


§ 16
Granting of rights, the customer reviews

Any customer who decides to write a review (customer feedback) shall grant Musik Schmidt, for the duration of the relevant right, a perpetual, worldwide, exclusive license to use said customer review online and offline for any purpose whatsoever. We will endeavor to always state the author’s name (unless the author stated that he/she wishes to remain anonymous) but reserve the right to abbreviate or omit his/her name. We also reserve the right not to publish reviews or to publish them only for a limited period of time on our website, and to abridge or change such reviews. Customer reviews reflect the opinions of our customers only. Their content does not necessarily reflect our view.

§ 17
Collection, processing and use of personal data
from our customers

Any data obtained from our customers will help us to customize and continuously improve the shopping adventure of the customers visiting Musik-Schmidt.de. We use said data for processing orders, shipping goods and rendering services, and for payment processing. We also the customer data to communicate orders, products, services, and marketing promotions to our customers, to update our databases, keep and maintain customer accounts, to display content (e.g. customer reviews), and to recommend products or services that might be interesting for customers. We also use the customer’s data to improve our shop and platform, prevent abuse of our website or to detect such abuse, or to allow third parties to carry out technical, logistical and other services on our behalf.

Please find more information in our company’s Privacy Notice with regard to type, scope, place and purpose of collecting, processing, and using personal data required to process orders, register for our newsletter, and for sending online reviews.


Frankfurt (Last update: January 2010)