General Terms and Conditions of Sale and Delivery

Transcription

1 mmvO Ev2 General Terms and Conditions of Sale and Delivery Your supplier and contractual partner Musik und Medienvertrieb [Music and Media Sales] is a division of jpc schallplatten Versandhandelsgesellschaft mbh Lübecker Str Georgsmarienhütte General management: Gerhard Georg Ortmann Commercial register: Osnabrück municipal court HRB VAT ID No.: DE Tel: Fax: e mail: mmv.service@jpc.de Use the contact data provided above for questions, complaints and suggestions as well 1. Commercial Mail Order Business 1.1. The information at medien vertrieb.de and the offers there are exclusively intended for companies or purchasers who use our goods or services in their independent professional or trade related activities or in their official or business related activities and who are registered via the jpc distribution channel MMV (Musik & Medien Vertrieb [Music and Media Sales]) as a commercial purchaser and reseller for the shipment of contractual items within the Federal Republic of Germany. We will check your status before the first purchase orders are placed (e.g. via the presentation of a business license, a book dealership number or confirmation of freelance activity by the tax office). Invoices will be issued accordingly. We do not accept purchase orders from consumers at this Web site A revocation right or a right of return as in the case of long distance sales contracts with consumers in accordance with 312 d BGB [German Civil Code] will not be granted to commercial purchasers. 2. Applicability of our Terms and Conditions of Sale and Delivery The following business terms and conditions will form the basis for all of the contracts concluded with us on line at our shop site medien vertrieb.de. The business terms and conditions will also apply to all future business relationships, even if they have not been expressly agreed upon once again. These conditions will be regarded as having been accepted when the goods are accepted at the latest. Counter confirmations of the seller with a reference to his business and purchasing terms and conditions are hereby rejected.

2 3. Storage Possibility and Inspection of the Contract Text 3.1. You can view these terms and conditions of sale and delivery for commercial mail order business at any time at our shop site medien vertrieb.de. You can print out or save this document by using the customary functions of your Internet services program (browser: usually "File" > "Save as" there). You can also download this document in a PDF form by clicking here. You will then need the free program Adobe Reader (at to read it You can also additionally archive the data of your purchase order in a simple way by either downloading the general business terms and conditions and saving the data summarized on the last page of the order sequence in the Internet shop with the aid of your browser functions or waiting for the automatic confirmation of the receipt of the purchase order, which we will additionally send to you via e mail at the address provided by you after the completion of the purchase order. This e mail confirming the receipt of the purchase order will include the data on your purchase order and these general business terms and conditions once again and can be easily printed out or saved with your e mail program Your order data will be saved at our company in addition to the general contract terms included in the terms and conditions of sale and delivery. You can call up this data at our Web site under "My Account" and save it via your Internet services program (browser). Furthermore, you can also get in touch with us via a contact form, in order to change your address or your type of payment when there are open orders, for example. For your security, this takes place via an encrypted connection (SSL), as is also the case for everything else in the log in area. 4. Contractual Partner, Language 4.1. Your contractual partner is jpc schallplatten Versandhandelsgesellschaft mbh. Purchase orders can only be placed after access is enabled and the password and user ID are announced by jpc. Purchase orders are only permitted in an electronic way in a form that makes automated order processing possible for the contractor Agreements can currently be made in German and English in our Internet shop. 4.3 Our offers do not have a binding effect until they become the content of an agreement. You will receive a technical confirmation of order receipt on the Web site and via e mail after you place your order. The electronic confirmation of order receipt does not yet represent the acceptance of the agreement; it merely serves to notify the customer of the actual receipt of the purchase order. The sales agreement comes about when we accept your purchase order via an acceptance declaration or delivery of the goods or, as the case may be, via notification of delivery within the indicated delivery time. The prices that are in effect at the point in time the purchase order is placed will apply; binding changes could also result after the conclusion of the contract based on the Book Price Maintenance Act for price controlled products of this type.

3 5. Prices, Shipping Costs, Minimum Purchase Order Quantities 5.1. The price information for customers is only provided in an encrypted form on the Web site at the request of a number of customers, because end customers can frequently see this in the retail store, for instance. The effective price information for the customer is shown as a net price under the order number with the abbreviation "id." in each case. This is shown without a decimal point, and it is understood that the statutory value added tax will be added. The highlighted price is from the normal jpc shop and is not of a binding nature at all. The dealer remains obligated in any case to comply with the Buchpreisbindungsgesetz [Book Price Maintenance Act] The prices listed in the offer at the point in time the purchase order is placed will apply to purchase orders in our Internet shop. The prices that are shown vary according to the view version that can be selected by the customer. The "standard" view contains our gross sales prices. In the "dealer version", all of the prices are net prices and the statutory value added tax and shipping costs are to be added to them. Only the prices shown in the dealer version are relevant for purchase orders No postage will be charged. An order processing fee of EUR 4.99 for deliveries within Germany will be incurred, however. This order processing fee will be incurred once per open order at a maximum and, in fact, regardless of whether one overall delivery is made or several partial deliveries of the order within the framework of a unitary purchase order. It will become due and payable with the first (partial) delivery of an order. If there is subsequent processing of an order that has already been delivered in part at the request of the customer, the fee will be due once again. Subsequent processing of orders that have not yet been delivered in part will not lead to another fee, in contrast Please find the processing fee for other countries in the following table. Austria 5.99 Belgium 5.99 Denmark 5.99 Estonia Finland France 7.99 Great Britain 7.99 Greece 9.99 Ireland Italy 9.99 Lithuania Luxemburg 5.99 Latvia Malta The Netherlands 5.99 Poland 9.99 Portugal 9.99 Romania 19,99 Sweden Slovenia Slovakia 22.99

4 Spain 9.99 Czech Republic Hungary Cyprus It is understood that the applicable value added tax in each case will be added to the figures in the table. 6. Delivery 6.1. We only deliver to commercial purchasers within the area of the European Union We can select the carrier at our reasonable discretion An obligation to make the delivery will no longer exist if we ourselves do not receive deliveries in a correct and punctual fashion and are not responsible for the lacking availability. We will notify you without delay when goods are not available and will immediately reimburse any advance payments that were made The delivery time will be extended in an appropriate way when there are strike actions and lockouts that interfere with the delivery and other circumstances for which we are not responsible, in particular in cases of delivery delays due to force majeure. We will notify the purchaser without delay of the start and end of difficulties of that type If we are responsible for noncompliance with binding time limits and deadlines or if we are in arrears, the claim of the purchaser to compensation for the delay will be limited to the amount of 0.50% for each complete week of the delay; the total compensation will be limited to 10% of the order value of the deliveries and services impacted by the delay. Liability is limited to typical and foreseeable losses here. Claims going beyond that are ruled out in commercial dealings unless the delay is based on intent or gross negligence by us or our vicarious agents or statutory representatives We have entrusted Vfw Aktiengesellschaft with the task of accepting the return of our packages. You can hand them over without charge to the Vfw delivery points or give them to the courier service of Vfw AG for free. Toll free information at Tel Payment 7.1. Billing will be done via an invoice that is included in the shipment of goods. Payments for purchase orders from the Federal Republic of Germany can only be made via a direct debit (DD). Payments from the remaining area of the European Union are only possible by means of a credit card. Deliveries will not be made to other countries. Checks and bills of exchange will not be accepted as a means of payment. Payments will first be regarded as having been made on the day that jpc can access the amount that was transferred. Payments in foreign currencies will be credited in accordance with the bank settlement. Differences in exchange rates, transfer fees and other costs of money transactions will be charged to the person who is obligated to make the payment.

5 7.2. jpc can make the delivery dependent upon the provision of security in the first year of a new business relationship. jpc is entitled, despite provisions of the customer to the contrary, to first credit payments to his older debts, then to the costs, then to the interest and lastly to the main payment. The product that has already been resold by the customer will be considered the product that has been paid for in the case of products delivered with a retention of title. The customer will be notified of the offset that is effected If compliance is not kept with the payment terms or if it turns out after the contract is concluded that the customer has not fulfilled payment obligations existing vis à vis other third parties without a discernable justification, jpc is entitled, in deviation from the agreed upon payment terms, to demand an advance payment or the provision of security in whole or in part for all of the claims that are due or even claims that have not yet become due and payable. Moreover, jpc is entitled to refuse performance until the advance payment is made or the security is provided and to withdraw from the contract after a time limit has been set in vain for the advance payment to be made or the security to be provided. If installment payments have been agreed upon, the entire remaining liability will become due and payable without further reminders if the customer is in arrears in whole or in part with the payment of an installment for more than 1 week. The same applies if bankruptcy proceedings are filed with regard to the assets of the customer The customer is only entitled to effect an offset, to retain items or to effect a reduction, even if a notice of noncompliance or counterclaims have been asserted, if the counterclaims have been established in a legally effective way or are not in dispute Claims of the customer against jpc arising from the overall business relationship cannot be assigned to third parties. 8. Transition of Risk The transition of risk to the customer takes place as soon as the shipment has been turned over to the person or organization that will carry out the transport. If the shipment is delayed at your request, the transition of the risk to the customer will take place when readiness to ship is announced. 9. Reservation of Title 9.1. jpc will be granted the following types of security, which the customer will release at jpc's option upon demand if its value exceeds the claims by more than 10% on a lasting basis, until all of the claims are fulfilled (including all of the balance claims from the current account) that jpc is entitled to for any legal reason against the customer, now or in the future jpc will remain the owner of the goods. The customer will hold the property of jpc in custody without a fee. Goods to which jpc is entitled to (co )ownership will be called reserved goods below.

6 9.3. The customer is entitled to process and to sell the reserved goods in proper business transactions if he is not in arrears. Pledges or assignments as collateral are not permitted. The customer will already assign the claims that arise with regard to the reserved goods (including all of the balance claims from the current account) from the resale or based on a different legal reason (insurance, prohibited action) to jpc at this point in their full scope as a precaution. jpc authorizes him until further notice to collect the accounts receivable that were assigned to jpc for his account under his own name. This collection authorization can only be revoked if the customer does not properly meet his payment obligations When third parties attempt to access the reserved goods, the customer will point out that they are owned by jpc and will notify it without delay. The customer will bear the costs and losses When there is behavior of the customer that is contrary to the terms of the contract especially a delay in payment jpc is entitled to withdraw from the contract and to demand the return of the reserved goods. 10. Warranty Because we only deliver to businesspersons, we are limiting the warranty period for them to one year starting from delivery as a general principle. The period will start with the delivery of the goods As a businessperson, you have to notify us in writing of obvious defects without delay, but within a period of 14 days starting with the receipt of the goods at the latest. When non obvious defects are discovered, there is an obligation to give notice of the defect without delay, within 14 days starting with the discovery of the defect at the latest. Sending the notice within the proper period of time will suffice to preserve the rights of the customer. Otherwise, the goods will be regarded as having been approved, even in consideration of the respective defect. Sending the notice within the proper period of time will suffice with regard to adherence to the time limit. 377 HGB [German Commercial Code] will additionally apply to businesspersons Compensation claims based on a material defect arising from injury to life, limb or health and compensation claims that are based on an intentional or grossly negligent breach of a duty by us or by our vicarious agents will form an explicit exception to the above mentioned reduction of the warranty period (Item 10.1) and the warranty exclusion (Item 10.2). The statutory warranty without reductions with a period of 2 years will be applied to those claims. In addition, guarantee of the respective manufacturers that may exist will not be impacted by the warranty reduction. Moreover, the provisions of 478 BGB [German Civil Code] regarding dealer recourse in the case of the sale of newly manufactured goods to a consumer will not be impacted by that.

7 10.4. We are obligated to provide our choice of cost free subsequent performance, i.e. to remedy the defect, or to make a replacement delivery within the warranty period in the case of defects that are subject to the statutory warranty. If we are not willing or not in a position to remedy the defect or to make a replacement delivery or if this is delayed beyond a reasonable period of time for reasons for which we are responsible, or if the remedy of the defect or the replacement delivery is unsuccessful in other ways, you are entitled to demand your choice of a corresponding reduction of the purchase price or to withdraw from the contract. Claims to compensation could also exist when the statutory prerequisites are present; the liability limitation in Item 11 is to be observed with regard to this. A withdrawal and compensation instead of performance are additionally ruled out if the defect only reduces the value or the suitability of the item that was purchased or of the work in an insignificant way We will not provide a warranty for defects and damage that arose because of unsuitable and improper use, a lack of observance of reasonable usage notices or faulty handling unless the purchaser verifies that these circumstances are not the cause of the defects that are the subject of the complaint When there are service questions, please turn to our customer service department, which you can reach as follows: jpc schallplatten Versandhandelsgesellschaft mbh Lübecker Str Georgsmarienhütte Tel: * (Mon. Sat., 8 a.m. 8 p.m.) Fax: * e mail: service@jpc.de *0.14 EUR/minute from the landline of DTAG, cellular telephones may deviate from that 11. Liability We will only be liable for compensation claims going beyond the warranty claims in particular due to unauthorized actions, organizational culpability, culpability in the conclusion of the contract or any other fault dependent claims based on breaches of obligations if we or our vicarious agents acted with intent or gross negligence or if the loss is based on a breach of material contractual duties or claims according to 1, 4 of the Produkthaftungsgesetz [German Product Liability Act]. The abovementioned liability exclusion for cases of ordinary negligence will not apply to losses arising from injuries to life, limb or health or in the case that a guarantee is provided as to the condition of the goods or if there is a fraudulent concealment of a defect as defined by 444 BGB [German Civil Code]. We will also be liable with ordinary negligence in those cases. In so far as there are provisions for our liability above, that will also apply to our workers, employees, representatives and vicarious agents.

8 12. Product Information 1. The customers are aware that jpc purchases database content from third parties such as PhonoNET, for instance, and publishes it based on these legal relationships. Furthermore, jpc publishes its own content with regard to products and product illustrations. The customer is not entitled based on the contractual relations with jpc to either use the product information and illustrations of these contractual partners in any form or to use other content of jpc in a corresponding way. 2. Any use of works of the contractual partners of jpc or content of jpc that goes beyond the use of electronic ordering systems for placing purchase orders will require a separate agreement to grant rights. All instances of a separate granting of rights will solely apply to the medium of the Internet when there is doubt; product illustrations have to be arranged in terms of resolution, size and presentation in such a way that they are not suitable for printing out high quality copies or otherwise being used as a replacement for the jackets of private or commercial copies of the sound image and data storage media. Furthermore, when there is doubt, the data that is made available by jpc within the framework of the separate agreement is to only be used for the purposes of this contract; in particular, the data is only permitted to be used within the framework of sales promotions to end consumers, the data is not permitted to be passed along either in whole or in part to third parties and the data together with the respective content is to be deleted without delay upon the request of jpc or the relevant owners of the rights. 13. Data Protection We will store and use your address and order data for the purposes of customer administration, realization of the contract, handling of warranties that may arise and for our own marketing. Address data is not passed along to third parties for advertising purposes! You can also use some of the services from us on an anonymous or pseudonymous basis, for instance our free ofcharge information service "Free Newsletter on Music, Movies and Literature" (menu item "Newsletter" on the home page) and also surfing on our pages. We will not pass along your e mail address for third parties to use. We need your address and the communication data for your purchase orders and for processing the order, of course. In addition, we will also store your open orders and orders that have been completed for you. You can now review this data at any time in the password protected customer log in area and even still edit open orders We have to protect you and ourselves against improper use in order to be able to offer you the best possible options for the selection of the type of payment. In cases in which we make delivery before payment, we send the data required for a credit check to InFoScore Consumer Data GmbH, Rheinstr. 99, Baden Baden, and only use the information that is received for contractual purposes. You can naturally object to the use of your data for advertising purposes by us at any time with a simple note to jpc schallplatten Versandhandelsgesellschaft mbh, Lübecker Str. 9, D Georgsmarienhütte, and we will immediately include you in our lock file.

9 14. Jurisdiction, Partial Ineffectiveness, Applicable Law Our headquarters is agreed upon as the jurisdiction for any legal disputes resulting from the contract, including legal actions regarding bills of exchange and checks, in business transactions involving businesspeople and legal entities under public law; we are also entitled in those cases to file a legal action at the headquarters of the purchaser When individual provisions of the delivery agreement or of these general business terms and conditions are ineffective, the remaining provisions will continue to be effective The law of the Federal Republic of Germany will apply to all legal transactions or other legal relations with us. The UN sales law (CISG) and any other international treaties will not apply, even after being adopted in German law. Notice in Accordance with the Batterieverordnung [German Battery Regulation] Batteries are not permitted to be disposed of in normal household trash. You, as an end consumer, are legally obligated to return used batteries or to dispose of them properly. You can hand over your used batteries at public collection points in your community for this or turn them in wherever corresponding batteries are sold. You can give us back the batteries that you obtain from us without charge after use or send them back to us in the mail. These symbols mean that you are not permitted to put batteries in household trash because they contain harmful substances. You will additionally find the symbols shown below with the following meanings under these symbols: Pb: The battery contains lead Cd: The battery contains cadmium Hg: The battery contains mercury As of September of 2008 Your jpc schallplatten Versandhandelsgesellschaft mbh These general business terms and conditions are also intellectual property that is protected by a copyright. Use by third parties even in the form of excerpts for commercial purposes of offering goods and/or services is not permitted. Claims will be pursued when there are violations. WIENKE & BECKER will not assume liability vis à vis third parties, especially not for the completeness and current status of the statements made above WIENKE & BECKER COLOGNE Attorneys.