General terms and conditions
of Frenkenberger Music Shop e.U.
hereinafter referred to as „Frenkenberger Music“
Version date: 01-12-2008
I. Scope
Any deliveries, performances and offers associated with our company Frenkenberger Music are governed exclusively by these terms and conditions; we do not accept any conflicting conditions or conditions from clients that deviate from our terms and conditions, unless we expressly agreed to them in writing. In this respect, transactions on our part for the fulfilment of the contract shall not be deemed consent with contractual conditions that deviate from the conditions set forth by us. These terms and conditions are considered the framework agreement governing any other legal transactions between Frenkenberger Music and the contracting parties, the clients.
If any part of contractual agreements with our clients, including these terms and conditions, is or becomes ineffective, the effectiveness of all other provisions shall not be affected hereof. The ineffective part of the agreements shall be reinterpreted or replaced by a regulation that allows the achievement of the originally intended purpose in a legal manner.
II. Quote and execution of contract
All quotes are non-binding and subject to change without notice. The prices quoted by us are daily prices per unit, and to the extent not specified otherwise, include the applicable Austrian sales tax (currently 20%) and exclude the shipping costs. With the publication of updated prices or a new price list, any previous price lists become invalid. Contracts are deemed executed upon our written order confirmation or delivery of the goods. Verbal information and promises as well as data contained in price lists and advertising media, irrespective of its nature, are subject to change, unless they are expressly specified to be binding. Any other covenants or collateral agreements shall only take effect upon our written confirmation. Subject to price changes, errors and printing errors.
III. Delivery
Ordered merchandise may not be picked up; it will be delivered exclusively via shipping. Our merchandise is shipped from our warehouse in Salzburg via parcel service, courier, forwarding agent or regular mail. Free shipping is available in Austria and Germany for orders with a gross order value of 50 € and up. The shipping costs for chargeable deliveries in Austria and abroad will be itemised under „Delivery and shipping charges“. We will decide on the type of shipping. The merchandise is transported at the recipient’s risk. The time of delivery will depend on the availability of the ordered goods and the common transport time of the utilized means of transportation. Specified delivery times are non-binding. The client is not entitled to assert any warranty claims, rights to contest because of an error and claims for compensation due to delays in delivery.
IV. Cancellation of the contract
With respect to distance selling contracts (sections 5a et sqq. of the Consumer Protection Act), the consumer has the right to cancel the contract within 7 business days, where Saturdays are not considered business days. The term starts on the day the merchandise arrives at the consumer’s address. It is deemed sufficient, if the notice of cancellation is mailed within this term. If the consumer cancels the contract pursuant to this provision, he shall bear the return costs for the merchandise. We exclusively take back merchandise that is complete and in unused, undamaged condition. With respect to shrink-wrapped and/or sealed data carriers (e. g. CDs, audiocassettes, VHS videos, DVDs, PC and video games and software), this means that the merchandise will only be taken back if the shrink-wrap is unopened and the seal is not damaged.
We have the right to cancel the contract in case of delayed acceptance or for other important reasons, including without limitation bankruptcy of the client or rejection of bankruptcy for lack of assets and violation of the payment terms by the client, provided the contract has not yet been fulfilled completely by both parties. If the contract is cancelled due to the client’s fault, we have the right to request flat rate compensation for damage in the amount of 15% of the gross invoice amount or compensation for the actually incurred loss at our own choice. If the client violates the payment terms, we will be relieved from any further performance and delivery obligations and have the right to retain outstanding deliveries or performances and to request deposits or securities or to cancel the contract after setting a reasonable grace period. If the client cancels the contract without being entitled to do so or if he requests the cancellation, we will have the option to insist on the fulfilment of the contract or to consent to the cancellation of the contract; in the latter case, the client will be obligated to pay flat rate compensation for damage in the amount of 15% of the gross invoice amount or the actually incurred damage at our own choice.
V. Payment and due date
Frenkenberger Music only accepts the methods of payment specified to the client within the scope of the order procedure. If the client has provided a valid e-mail address, the invoice will be e-mailed to him. The purchase price and any applicable shipping costs will be due upon complete delivery. If the payment is made via automatic debit transfer and credit card, the amount will be charged on the invoice date. Frenkenberger Music reserves the right to request a deposit in the amount of the order value, especially in cases where some invoices remain unpaid at the time the new order is placed. The client is only entitled to setoff if and to the extent his counter-claims have been legally determined, are uncontested and recognised by Frenkenberger Music. The client is only entitled to exercise the right of retention if his counter-claim is based on the same purchase agreement.
VI. Reservation of title and assertion of the reservation of title
We deliver all our goods subject to the reservation of title and they remain our property until paid in full. The assertion of the reservation of title shall only be deemed a cancellation of the contract, if the cancellation is expressly declared. We have the right to charge incurred transport and handling costs in connection with merchandise returns. If the reserved merchandise is accessed by third parties – in particular based on seizures – the client agrees to point out our ownership and to notify us immediately. If the client is a consumer or not an entrepreneur for whom the regular business transactions include the trade with merchandise acquired from us, he is not authorised to dispose of the reserved goods until the purchase price has been paid in full; in particular, he is not authorised to sell, pledge, give away or lend them to someone. The client shall bear the full risk for the reserved merchandise, including without limitation the risk of destruction, loss or deterioration.
VII. Warranty and liability
If the object of the sale is deficient, the legal provisions shall apply. The assignation of these claims by the purchaser is excluded. To the extent nothing else is specified below, any additional claims asserted by the purchaser, irrespective of the legal grounds, are excluded. Consequently, we will not be liable for any damages not related directly to the delivered object; in particular, we will not be liable for lost profit or other financial losses of the client. The limitation of liability set forth above does not apply if the damage is due to intent or gross negligence.
The period of limitation is twenty four months, starting from the delivery date. After the end of the warranty period the assertion of warranty claims is excluded, including for hidden defects.
VIII. Complaints
Visible transport-related damages shall be recorded immediately on the delivery note and reported to the transport company in writing within 24 hours. Frenkenberger Music shall be notified immediately in writing of these kinds of damages. The client agrees to examine the accepted goods immediately and to check them for defects. In case of justified notification of defects, we will replace or remedy the deficient object(s) or issue a credit for the purchase price at our own choice.
Deficient merchandise shall be returned in accordance with the legal provisions.
Deficient goods shall be returned exclusively after the prior written description and approval of the errors. The return expenses shall be borne by the sender (“free shipping”). We have the right to charge an expense fee for objected merchandise for which no defects are determined in spite of detailed examination. The goods will be returned cash on delivery.
ÍX. Choice of law, legal venue
Austrian law applies. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The language of the contract is German. The contracting parties agree on domestic Austrian jurisdiction. If this does not relate to consumer business, the competent regional court at the domicile of our company will be exclusively in charge of settling any disputes arising in connection with this contract.
X. Privacy, change of address and copyright
The client consents to the computer-aided archiving and processing of the personal information contained in the purchase agreement.
The client agrees to notify us of any changes in his private or business address as long as the legal transactions under the contract in hand have not been completely fulfilled by both parties. If the notification is omitted, any declarations are deemed received if they were sent to the last known address.
Samples, catalogues, flyers, pictures etc. shall always be deemed intellectual property; the client shall not be granted any rights to the use of the works or usage rights of any kind.
