General Terms and Conditions
§ 1 Application of our terms and conditions
(1) All applications, offers, sales and contracts for deliveries and services as well as consulting services in business dealings with non-consumers in accordance with the law § 310 Abs. 1 BGB with Warwick GmbH & Co. Music Equipment KG (hereinafter referred to as Warwick) are based on these General Terms and Conditions. Our offers, price lists, brochures and other documents are subject to change in terms of prices and delivery options. Customers can be both entrepreneurs and consumers. A consumer is any natural person who concludes a legal transaction for purposes which are predominantly neither their commercial nor their independent professional activity can be attributed (§ 13 BGB). Entrepreneur is a natural or legal person or a legal partnership that acts in the execution of a legal transaction in the exercise of their commercial or independent professional activity (§ 14 BGB). Contract language is German or English.
(2) Our General Terms and Conditions (GTC) apply exclusively to all current and future business relations between the customer and us. Deviating, conflicting or supplementary terms and conditions, even if known, are not part of the contract, unless we have expressly agreed to their validity in writing. They do not become part of the contract, even if we do not expressly contradict them. Our terms and conditions apply even if we execute the delivery without reservation under the contrary terms and conditions of the customer. Changes and additions are made by the management. Verbal agreements or declarations by other persons not specifically authorized by the supplier for this purpose are only valid if confirmed in writing by the management of the supplier. These conditions also apply to all future business between the contracting parties. Business and purchasing conditions of the customer only oblige us, insofar as they do not contradict these terms and conditions and are acknowledged in writing by us.
(3) Our offers are always non-binding, unless otherwise stated in the order confirmation. Oral special offers require a written confirmation to be valid. Orders are only binding for us if they have been confirmed by us in writing. The presentation of the products in the online shop does not constitute a legally binding offer, but only a non-binding online catalogue of the product range. By clicking on the "Buy" button, the customer makes a binding order for the goods contained in the shopping cart. A confirmation of receipt of the order follows immediately after sending the order. The customer is obliged to immediately check our order confirmation or shall accept it as acknowledged if he does not immediately object in writing.
(4) The contract text will be stored and the order data and the general terms and conditions will be sent to the customer by e-mail. Claims from the contractual relationship are not transferable by the customer without our written consent.
(5) Each conclusion of the contract as well as the delivery itself is subject to the correct and timely self-delivery by our suppliers, if the non-delivery is not our responsibility. The customer will be informed immediately about the unavailability of the service. The consideration will be refunded.
§ 2 Information on the nature of our products, prices
(1) When placing an order, the customer must take into account the technical data in accordance with the state of the art, the legal and technical regulations and any individual legal agreements.
(2) Information in catalogues, sales documents, sketches, drawings, price lists, etc. are only approximate but best determined. Samples and samples are considered average. We reserve the right to make technical changes to the goods compared with the information in printed materials, illustrations and catalogues. Likewise, changes in shape, colour and / or weight are reserved within reasonable limits.
(3) We reserve all property rights, copyrights and other rights to illustrations, drawings, advertising and other imprints, calculations and other documents. This applies in particular, but not only, to written documents that are designated as "confidential". A transfer to third parties may only be made with our prior express written consent.
(4) Our prices are non-binding recommended prices.
(5) In the case of contracts with an agreed delivery period of more than six weeks, we reserve the right to increase the prices according to actual cost increases due to subcontracting agreements, collective agreements or material price increases. If the increase is more than 5% of the agreed purchase price, the customer has the right to withdraw from the contract in accordance with § 313 Abs. 3 BGB. A claim for damages of the customer is excluded for this case.
(6) Value Added Tax is not included in our prices. It will be shown separately in the bill at the statutory rate on the day of invoicing.
(7) Unless otherwise stated in the order confirmation, our prices apply "ex works" (Markneukirchen), excluding statutory value added tax and packaging. The packaging will be invoiced separately. Value added tax will be shown separately in the invoice in the statutory amount applicable on the day of invoicing.
(8) All quotations and prices outside the order confirmation are non-binding and can be changed by us at any time.
§ 3 Delivery, delivery obligation, shipment and risk
(1) If the customer is an entrepreneur (§ 14 BGB), delivery is always at the risk of the customer. This also applies to partial deliveries. If the customer is a consumer within the meaning of § 13 BGB, the risk of accidental loss and accidental deterioration of the sold item also passes on the sale of the consignment only with the transfer of the goods to the customer. The transfer is the same if the buyer is in default of acceptance. The delivery will be made to the delivery address specified by the customer.
(2) We reserve the right to make cash on delivery or in advance in the amount of the whole or a partial amount of the purchase price. The order confirmation is enclosed with our invoice.
(3) Specified delivery times are adhered to as far as possible. Binding delivery dates and deadlines must be expressly agreed in writing. Minor exceedances are allowed. After expiry of the delivery period, the customer is entitled to set a reasonable grace period, taking into account the interests of the customer and our interests. In the case of non-binding or approximate delivery dates ("approximately", "approx.", "Preferably", etc.), we will do our best to comply with them.
A delivery period is then extended - even within a delay - if, after conclusion of the contract, obstacles occur which we are not responsible for. These include, for example, breakdowns, strikes, lockouts, disruptions to traffic routes, technical difficulties that are in the nature of the contract and make its execution impossible or unreasonable for us or for the suppliers, fire damage, missing raw material, electricity shortage. This also applies if these circumstances occur at our suppliers.
We will promptly notify the beginning and end of such obstacles to the customer. The customer may ask us for a declaration as to whether we wish to withdraw or deliver within a reasonable period of time. If we do not explain immediately, the customer can resign. Claims for damages are excluded in these cases.
(4) If the customer is in default of acceptance or if he breaches other obligations to cooperate, we shall be entitled to demand compensation for any damage incurred in this respect, including any additional expenses (for example storage costs). Further claims are reserved.
(5) Compliance with our obligation to deliver presupposes the timely and proper fulfilment of the obligations of the customer. The plea of the unfulfilled contract remains reserved.
(6) We reserve the right to send the customer a sample electronically in the sense of a digital "final artwork" of the ordered goods. This is created on the basis of data and print motifs provided by the customer. Production will only take place after the customer has approved the digital sample, which should be sent immediately upon receipt, preferably within 24 hours. Possibly. Agreed delivery times are only set in motion after the customer has approved the digital design.
(7) Partial deliveries are permitted.
(8) The risk of accidental loss or accidental deterioration of the ordered goods shall pass to the customer at the time at which he is in default of acceptance or payment.
§ 4 Legal right of withdrawal
Insofar as the customer is a consumer (§ 13 BGB), he has the right to revoke this contract within fourteen days without stating reasons if the requirements of §§ 355 ff. BGB are met. The cancellation period is fourteen days from the day on which the customer or a third party named by him, who is not the carrier, has taken possession of the last goods.
To exercise the right of withdrawal, the customer must contact
by means of a clear statement (for example, a letter sent by post, fax or e-mail) of its decision to withdraw from this contract. He can use the attached model withdrawal form, which is not required.
To maintain the cancellation period, it is sufficient that the customer sends the notice of the exercise of the right of withdrawal before the expiry of the withdrawal period.
(2) Consequences of the revocation
If the customer withdraws from this contract, we will have all the payments we have received from him, including the delivery costs (with the exception of the additional costs arising from the fact that the customer chooses a different kind of delivery than the cheapest standard delivery offered by us) to repay immediately and at the latest within fourteen days from the day on which we received the notification of the cancellation of this contract. For this repayment, we use the same means of payment as the customer used in the original transaction, unless otherwise expressly agreed; In no case will the customer be charged for this repayment charges. We may refuse to repay you until we have received the goods back or until evidence is provided by the customer that the goods have been returned, whichever is the earlier.
The customer must return the goods to us immediately and in any event not later than fourteen days from the date on which he informs us of the cancellation of this contract. The deadline is met if the customer sends the goods before the expiration of the period of fourteen days. The customer bears the cost of returning the goods in accordance with the statutory provision of § 357 (6) BGB.
The customer only has to pay for a possible loss in value of the goods, if this loss of value is due to a handling that is not necessary for the examination of the nature, characteristics and functioning of the goods. This is in particular the case if the goods and particularly the delivered instruments show signs of having been played and the use of the goods resulted in signs of usage going beyond an examination of the nature, characteristics and functioning of the goods. This applies in particular to the soiling of instruments to be returned. In this case, we reserve the right to offset the claims for damages to which we are entitled against the purchase price reimbursement claim, which can amount to the entire purchase price depending on the condition of the returned goods.
(3) Exclusion of the right of withdrawal
The right of withdrawal does not apply for:
- Delivery of goods that are not prefabricated and for the manufacture of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer
- Delivery of sealed goods that are not suitable for return for reasons of health or hygiene if their seal has been removed after delivery. This applies in particular if items intended for consumption are no longer in their original packaging or have been subjected to other uses or changes. This includes in particular:
- pickups (if no longer in their original packaging)
- cables that have been processed (shortened or soldered)
- strings (if they are no longer in their original packaging)
- instrument / string cleaning agents (if they are no longer in their original packaging)
- Delivery of sound or video recordings or computer software in a sealed package when the seal has been removed after delivery,
- Delivery of newspapers, periodicals or magazines with the exception of subscription contracts.
§ 5 Terms of payment
(1) By placing an order, the customer confirms his solvency and creditworthiness. Payments by the customer are made either by direct debit or cash on delivery, unless we have agreed expressly and in writing a different payment method.
(2) If, after conclusion of the contract, we become aware of facts which indicate that the claim for payment is in jeopardy due to a lack of customer's ability, we shall be entitled to demand advance payments or corresponding bank guarantees from the customer after setting a reasonable deadline. In the case of refusal, we can withdraw from the contract, whereby the invoices for already completed and / or completed or not yet delivered partial deliveries are immediately due. Partial deliveries not yet delivered will be delivered after payment.
Goods already purchased or ordered, as well as parts of goods already in the production process, shall be borne by the customer, unless this has already been adequately covered by another provision for compensation etc.
(3) Payments are due no later than 10 days after the invoice date without deduction. Warwick is entitled to demand advance payments on order confirmation, for partial deliveries already made or services / deliveries in stock.
(4) For payments by direct debit, the customer is entitled within 5 days after invoicing to deduct 1% discount on the net amount, insofar as this has been agreed separately between the parties and this is noted separately on the invoice. The purchase price may only be reduced by the discount if all due invoice amounts have been paid and the corresponding discount period has been met by payment receipt from us.
(5) Payments are only valid on the day on which we can dispose of the invoice amount.
(6) Payments for all claims may be made with a debt-discharging effect only to:
Warwick GmbH & Co. Music Equipment KG, P.O. Box 10100, D-08258 Markneukirchen / Wohlhausen
UniCredit Bank AG, IBAN: DE63 7602 0070 0008 7801 45, BIC: HYVEDEMM460
(7) In case of late payment we charge default interest of 9% above the current base rate, if it is a contract between Warwick and a company. In the event of a contractual relationship between Warwick and a consumer, default interest is 5% above the applicable base rate. We reserve the right to prove and assert a higher damage caused by default.
(8) The customer can only offset with undisputed or legally established counterclaims. A right of retention from previous or other transactions of the current business relationship can’t be asserted. In addition, the payment may be withheld due to defects or other complaints only on the basis of a complaint in writing and to the extent agreed upon.
(9) We are not obliged to accept bills of exchange or checks for the purpose of payment. Invoices are regulated by checks or bills of exchange only on account of fulfilment. All associated costs such as bill of exchange and collection charges are at the expense of the customer.
(10) For foreign payments, bank charges will be passed on. Unless otherwise agreed with us, our invoices are always payable within 30 days of receipt of the goods.
(11) Repairs and commission goods are generally payable after delivery or calculation without discount.
(12) Payments will be charged according to the legal regulation of § 367 BGB.
§ 6 Warranty
(1) Only the details given in the order confirmation or such information that we have issued in the form of a separate confirmation are deemed to be the quality of the delivery item. Descriptions of goods, weight and / or quantities, in particular in catalogues, brochures, on the Internet, in price lists and advertisements are only indicative or approximate values. They do not constitute binding quality specifications, unless information on the condition has been expressly confirmed by us in writing. The properties of sample or sample copies become part of the contract only if expressly agreed in writing.
(2) Defects or damages or the soiling of instruments resulting from culpable or improper handling, lack of cleaning/care or improper installation as well as the use of unsuitable accessories or modifications of the original parts by the customer or a third party not commissioned by Warwick are excluded from the warranty. The same shall apply if the articles intended for consumption are no longer in their original packaging or have been subjected to any other use or modification. This includes in particular:
- pickups (if no longer in their original packaging)
- cables that have been processed (shortened or soldered)
- strings (if they are no longer in their original packaging)
- instrument / string cleaning agents (if they are no longer in their original packaging)
(3) Wear based on use is also excluded from the warranty.
(4) If the customer accepts the goods or the object of the order despite being aware of a defect, he shall only be entitled to warranty claims to the extent described below if he expressly accepts them in writing (eg e-mail) immediately after receipt of the goods reserves.
(5) Warranty claims of the customer presuppose, as far as the entrepreneur is and the regulations on the commercial purchase of §§ 373 ff. HGB apply, if he has properly complied with his duty to inspect and complain under § 377 HGB. Warranty claims due to existing transport damage are also due to the customer under the same conditions. The regulation of this paragraph does not apply if the customer is a consumer.
(6) In the event of a defect, we can, at our option, arrange for the removal of the defect or the delivery of a defect-free product. In the case of removal of defects, we shall only be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, unless these are increased by the fact that the goods were moved to a place other than the place of performance, We can refuse supplementary performance if it is only possible with disproportionate costs.
(7) Should the Customer return the goods to Warwick for the purpose of subsequent performance or other warranty claims, the Customer is obliged to pack the goods properly so that the goods do not suffer any further damage during shipment. If the Customer returns goods in packaging that does not meet current packaging standards, we will refuse to honour warranty claims unless the Customer proves that the damage to the goods is not due to the improper packaging. Warwick will document the condition of the packaging. Packaging materials that do not comply with current packaging standards will be disposed of at the Customer's expense for a flat rate of € 29.50 plus statutory VAT. Warwick may retain the goods within the scope of existing warranty claims for as long as the Customer has not paid Warwick the flat-rate disposal fee agreed on the basis of these Terms and Conditions. Further statutory claims of Warwick and the Customer remain unaffected by this provision.
(8) If a complaint by the customer proves to be unjustified, the customer is obliged to reimburse the proven expenses incurred in the context of the alleged defect removal.
(9) The statutory warranty period is 24 months unless Warwick, in special circumstances, issues a separate garden clearance notice for certain parts. In this case, the separate warranty conditions apply additionally. The warranty period begins with passing of risk. The warranty period for used goods is different 12 months, provided Warwick, in particular for the injury of life, body and health, an unlimited liability. If the customer is an entrepreneur, the warranty period for new items is one year and for used items six months from the transfer of risk, provided Warwick, in particular for the injury to life, body and health, unlimited liability.
For the rest, the warranty is based on the statutory provisions.
(10) Warwick shall only be liable for damages other than injuries to life, limb and health insofar as these are due to intentional or grossly negligent acts or culpable violation of a material contractual obligation by Warwick or a vicarious agent (eg the delivery service) of Warwick based. Any further liability for damages is excluded. If a material contractual obligation is negligently breached, Warwick's liability is limited to the foreseeable damage.
§ 7 General limitation of liability outside the warranty
(1) The liability of Warwick for damages with the exception of any claims for damages for breach of the obligation to subsequent performance, for whatever legal reason, in particular impossibility, delay, breach of obligations in contract negotiations and tort, as far as it is in each case a fault arrives, restricted in accordance with this § 6.
(2) Warwick is not liable
a) in case of ordinary negligence on the part of its officers, legal representatives, employees or other vicarious agents;
b) in the event of gross negligence on the part of its non-executive employees or other vicarious agents; as far as it is not a violation of essential contractual obligations.
(3) To the extent that Warwick is liable in damages pursuant to § 6, this liability is limited to damages anticipated by Warwick upon conclusion of the contract as a possible consequence of a breach of contract or taking into account the circumstances known to Warwick or which Warwick should have known or when applying customary care should have foreseen. Indirect damage and consequential damage, which are the result of defects in the delivery item, are also only substitutable insofar as such damage is typically to be expected from the intended use of the delivery item.
(4) In the event of liability for ordinary negligence, Warwick's obligation to pay compensation for damage to property and personal injury is limited to EUR 3 million per claim (corresponding to the current coverage of its product liability or liability insurance), even if it is a breach of contract Duties.
(5) The provisions of the Product Liability Act remain unaffected.
§ 8 Retention of title
(1) The following agreed retention of title shall serve as security for all present and future claims of Warwick against the customer arising from the existing delivery relationship between the contracting parties, including balance claims arising from a current account relationship limited to this supply relationship.
(2) Goods delivered by Warwick to the customer shall remain the property of Warwick until full payment of all secured claims. The goods as well as the goods, which take their place after this clause and which are subject to retention of title, are hereinafter referred to as reserved goods.
(3) The customer stores the reserved goods free of charge for Warwick. He is obliged to treat the delivery item with care. Insofar as this is customary, he must insure the delivery item at his own expense against damage caused by fire, water, windstorm or theft, etc. at the acquisition cost. Insofar as maintenance and inspection work is required, the customer must carry it out in due time at his own expense.
(4) The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of recovery (paragraph 9) has occurred. The customer is entitled to resell the delivery item in the ordinary course of business. However, it hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claims arising from the resale against its customers or third parties, irrespective of whether the goods are resold without or after processing or processing has been. To collect this claim, the purchaser remains authorized even after assignment. Our power to disclose the assignment and collect the claim ourselves remains unaffected. However, we undertake not to disclose the assignment and not to collect the claim as long as the customer meets his payment obligations to us from the proceeds received, does not default on payment and, in particular, no petition for opening insolvency proceedings or cessation of payments. If necessary, we can demand that the purchaser notify us of the assigned claims and their debtors without delay, provide all information necessary for collection, hand over the associated documents and notify the debtors (third party debtors) of the assignment.
(5) If the reserved goods are processed by the customer, it is agreed that the processing takes place in the name and for the account of Warwick as manufacturer and the seller directly the property or - if the processing is made of materials of multiple owners or the value of the processed thing higher is as the value of the reserved goods - acquires the co-ownership (fractional ownership) in the newly created thing in proportion of the value of the reserved goods to the value of the newly created thing. In the event that no such acquisition of ownership by the seller should occur, the buyer already transfers his future ownership or - im o. G. Relationship - co-ownership of the newly created thing for safety to the seller. If the goods subject to retention of title are combined with other items or are inseparably mixed and if one of the other items is to be regarded as the main item, Warwick, insofar as the main item belongs to Warwick, transfers to the buyer a proportionate co-ownership of the unitary item in the relationship specified in sentence 1.
(6) Pledges and chattel mortgages are inadmissible. In the event of seizure or other interventions in or access to the delivery item, the orderer must notify us in writing without delay, at the latest within 3 working days, so that we can file an action in accordance with § 771 ZPO. Insofar as the third party is unable to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the purchaser shall be liable for the damage incurred by us. Unless the third party is able to reimburse Warwick for any judicial or extrajudicial costs arising in connection therewith, the Customer shall be liable to Warwick for this purpose.
(7) Warwick shall release the reserved goods as well as the items or claims which replace them on demand at its discretion, provided that their value exceeds the amount of the secured claims by more than 50%. The right to vote regarding the securities to be released is ours.
(8) If Warwick resigns from the contract in case of breach of contract by the purchaser - in particular default of payment - (recovery case), he is entitled to demand the restitution of the reserved goods.
§ 9 Place of Performance, Jurisdiction, Applicable Law
Place of performance and exclusive place of jurisdiction for delivery and payment (including check and bill of exchange claims) as well as all resulting disputes is the court responsible for Markneukirchen according to the legal regulations. However, we are entitled to sue the customer at his place of jurisdiction.
The contractual relationships are governed exclusively by the law applicable in the Federal Republic of Germany, excluding the UN Sales Convention (CISG). In the event that the buyer is a consumer, this applies only to the extent that the protection granted by mandatory provisions of the law of the state in which the consumer has his habitual residence, is not withdrawn.
§ 10 Privacy - Data Prodection
§ 11 Severability clause
Should individual provisions of a contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially ineffective regulation is to be replaced by a regulation whose economic success comes as close as possible to the ineffective one.
Warwick GmbH & Co. Music Equipment KG ,
Commercial Registry: Local court Chemnitz, HRA 2060
represent by personally liable Partner,
Warwick Verwaltungs GmbH
Commercial registry: Local court Chemnitz, HRB 11029
then again represent by Managing Partner, Mr. Hans-Peter Wilfer
Phone: +49 (0) 37422 555 0
Fax +49 (0) 37422 555 99
Commercial registry: Local court Chemnitz
HRA 2060 / HRB 11029
VAT No.: DE161934310
Markneukirchen, August 2020