General Terms and Conditions of Business
§ 1 General
1. These General Terms and Conditions of Business (as amended) shall apply to business relationships of any kind between Kirchhoff Schlagwerk, represented by Joachim Kirchhoff, Gahlingspfad 71-73, 47803 Krefeld, Germany (hereinafter referred to as „Kirchhoff Schlagwerk“) and the customer. Customers may be businesses or consumers. A consumer shall mean any natural person who concludes a legal transaction for purposes that can be primarily attributed neither to a trade nor a profession (§ 13 of the German Civil Code). A business shall mean a natural or legal person or a partnership with legal capacity which, in concluding a legal transaction, is acting in the exercise of its trade or profession (§ 14 of the German Civil Code).
2. The product display in the online store does not constitute a legally binding offer; instead it is merely a non-binding online catalogue of the range of products available. By clicking ‘Confirm Order’, the customer makes a legally binding commitment to purchase the goods in the shopping basket. The customer shall receive an order confirmation immediately after the order has been submitted. The sales contract shall only enter into effect upon receipt of our separate order confirmation. The contract is stored, and the order data and General Terms and Conditions are sent to the customer by email. Customers can view all of their previous orders by logging into the customer service pages of the website.
3. Kirchhoff Schlagwerk reserves the right to refuse to perform the service promised if it becomes apparent after concluding the Contract that the goods are not available although a corresponding contractual transaction has been concluded. In such a case, the customer shall be notified immediately. Any considerations which have already been provided shall be reimbursed without delay. Further claims against Kirchhoff Schlagwerk are excluded.
4. The contractual language is German.
§ 2 Delivery
1. If the customer is a business (as per § 14 German Civil Code), delivery shall generally take place at the customer’s risk. This also applies for partial deliveries. If the customer is a consumer within the meaning of § 13 German Civil Code, the risk of accidental loss and accidental deterioration of the sold goods shall only pass to the customer upon handover of the item, even in case of sales involving the carriage of goods. Handover shall be deemed to have taken place even if the buyer delays in accepting the goods. Delivery shall be to the delivery address specified by the customer.
2. All prices are cash prices and include VAT plus any applicable charges for packaging and carriage.
3. Deliveries are priced according to the displayed costs shown in checkout process on the website. Additional customs duties and charges for deliveries to countries outside the EU (third countries) shall be borne by the customer.
4. The goods must be thoroughly inspected by the customer or an authorised individual upon receipt in order to detect any transportation damage if the customer is a merchant within the meaning of the German Commercial Code. Customers who are merchants within the meaning of the German Commerical Code must ensure that any transportation and packaging damage detected is confirmed in writing by the carrier upon delivery and reported. We also ask, without legal obligation, that customers who are consumers notify us of any clearly identifiable transportation damage.
§ 3 Warranty and compensation
1. Defects or any other damage caused by negligent or improper treatment of the goods, improper installation, the use of unsuitable accessories or changes made to the original parts by the customer or a third party not commissioned by Kirchhoff Schlagwerk are not covered by the warranty.
2. Signs of wear and tear from normal use are also excluded from the warranty.
3. If the customer accepts the goods or the object of the order despite being aware of a defect, he/she shall only be entitled to assert warranty claims to the extent described below if he/she has expressly reserved the right hereto in writing immediately after receiving the goods.
4. Warranty claims on the grounds of transportation damage may only be asserted by the customer if the obligation to inspect and report in accordance with § 2 item 4 has been fulfilled. This does not apply if the customer is a consumer.
5. The warranty period for new items shall be 24 months. The period shall commence upon transfer of risk. Conversely, the warranty period for used items shall be 12 months. If the customer is a business, the warranty period for new items shall be one year and six months for used items from the transfer of risk.
6. Warranty formalities shall otherwise be carried out in congruence with the legal regulations.
7. Kirchhoff Schlagwerk shall be liable for damage arising from causes other than the detriment to life, body and health only to the extent that such damage arises from wilful misconduct, gross negligence or the culpable violation of a fundamental contractual obligation on the part of Kirchhoff Schlagwerk or a vicarious agent (e.g. the delivery service) of Kirchhoff Schlagwerk Any further liability for damages shall be excluded. The provisions of the German Product Liability Act shall remain unaffected. In the event of a negligent breach of a material contractual obligation, the liability of Kirchhoff Schlagwerk shall be limited to foreseeable damage.
§ 4 Due date and payment terms
1. Unless otherwise agreed in writing, invoices from Kirchhoff Schlagwerk must be paid in full without delay. Payment is to be made in cash on delivery. Orders paid in advance will be shipped upon receipt of payment. For payments by credit card, the actual sum shall be debited when the invoice is issued and the goods are shipped. The total amount shall be reserved on the customer’s credit card as soon as the online order is submitted.
2. Kirchhoff Schlagwerk reserves the right to decline cheques and other non-cash means of payment. Acceptance of these methods shall be for the purpose of payment only. Foreign currency payments shall be credited according to our bank statement. The bank fees must be borne by the customer.
3. If the customer falls into default on the payment of the purchase price, interest is to be paid on the total purchase price at five percentage points above the respective base rate for the duration of the delay. If Kirchhoff Schlagwerk is able to prove that greater damages were suffered as a result of the default, Kirchhoff Schlagwerk shall be entitled to assert the corresponding claims on these grounds.
§ 5 Retention of title
1. If the customer is a merchant within the meaning of the German Commercial Code, the goods supplied shall remain the property of Kirchhoff Schlagwerk until all of the outstanding claims against the customer, including any existing ancillary receivables, have been paid in full. In case of contracts concluded with consumers, Kirchhoff Schlagwerk shall reserve the right of retention for the goods until the purchase price has been paid in full.
2. The customer shall not be entitled to sell the goods to third parties or to take any other measures which could put the ownership of Kirchhoff Schlagwerk at risk until the purchase price has been paid in full. The customer hereby assigns to Kirchhoff Schlagwerk any future claims against the buyer in the amount of the purchase price agreed between Kirchhoff Schlagwerk and the customer, including interest and ancillary payments. Kirchhoff Schlagwerk accepts this assignment.
§ 6 Place of fulfilment and place of jurisdiction
1. The law of the Federal Republic of Germany shall apply with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Should the purchaser also be the consumer, this only applies to the extent that they do not lose the protection of binding legal provisions of their state of usual residence.
2. The place of fulfilment for all services and products arising from business transactions with Kirchhoff Schlagwerk shall be Krefeld, insofar as the customer is a merchant, a legal person governed by public law or a special fund under public law.
3. If the customer is a merchant, legal person governed by public law or special fund under public law, Krefeld shall be the exclusive place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship with the customer or from these General Terms and Conditions of Business.
§ 7 Alternative dispute resolution
The seller is not obliged and is not prepared on principle to participate in a dispute settlement proceeding in front of a consumer arbitration board.