General Terms and Conditions of Business
§ 1 General
- These General Terms and Conditions of Business (as amended) shall apply to business relationships of any kind between Thomann GmbH, Hans-Thomann-Straße 1, 96138 Burgebrach, Germany (hereinafter referred to as „Musikhaus Thomann“) 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).
- 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 ‘Buy’, 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.
- Musikhaus Thomann 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 Musikhaus Thomann are excluded.
- The contractual language is German.
- When placing an order in the online store, the customer follows the technical steps as described below in detail:
- Click on “Proceed to Checkout” in the shopping basket displayed on the screen
- Redirection to the general order overview page (thomann.de Checkout) where the customer is guided through the individual stages of the purchase
- Step 1 Selection of “Invoice and Delivery Address” (if the customer does not have a customer account and is not logged in; otherwise the invoice and delivery addresses are already stored);
- Entry of “Invoice Address”;
- If the invoice address and delivery address differ, there is the option to”Enter a different delivery address” by checking the box
- Step 2 In the next stage, the customer is given an overview with the header“All Items of Your Order” and has the option to change the contents of the basket
- Step 3 Selection of “Method of Payment” (by clicking on the desired payment method)
- Step 4 The customer can choose from“More Options” by checking the relevant boxes (different delivery address, shipping date, use Thomann voucher, add a comment/note to the order)
- Completion of order by clicking “Submit”
The customer proceeds to each of the order steps referred to above using the usual functions of the internet browser.
§ 2 Delivery
- 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.
- All prices are cash prices and include VAT plus any applicable charges for packaging and carriage.
- Domestic deliveries within Germany are priced at EUR 2.99 per order. For orders in excess of EUR 25.00, we will post goods within Germany free of shipping costs. The international shipping charges are available under shipping. Additional customs duties and charges for deliveries to countries outside the EU (third countries) shall be borne by the customer.
- 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 Statutory right of withdrawal
Statutory right of withdrawalIf the customer is a consumer (as per § 13 of the German Commercial Code), he/she shall be entitled to withdraw from this Contract within fourteen (14) days without giving any reason for doing so. The deadline for withdrawal shall be fourteen (14) days from the date on which the customer or a third party appointed by the customer, who is not the carrier, takes possession of the final goods delivered.
In order to exercise the statutory right of withdrawal, the customer must notify us (Thomann GmbH, Hans-Thomann-Straße 1, 96138 Burgebrach, Germany. Tel: +49-9546-9223-476, Fax: +49-9546-9223-8399, Email: firstname.lastname@example.org) of his/her decision to withdraw from this Contract in a clear declaration (e.g. by sending a letter by mail, fax or email). The customer may use the withdrawal form template attached for this purpose; however, this is not obligatory.
The withdrawal deadline shall be deemed to be met if the customer sends the communication concerning the exercise of the right of withdrawal before the expiry of the deadline.
Consequences of withdrawalIf the customer withdraws from this Contract, we must reimburse any payments we have received from the customer, including delivery costs (excluding any additional costs incurred if the customer has selected a different type of delivery to the cheapest standard delivery option offered by us) without delay, but no later than fourteen (14) days after the day on which we receive the notice of the customer’s withdrawal from this Contract. We will use the same payment method the customer used for the original transaction in order to provide the reimbursement, unless otherwise expressly agreed; under no circumstances will the customer be charged a fee for this refund. We may withhold the reimbursement until we have received the returned goods or until the customer has provided proof that he/she has returned the goods, whichever is earlier.
The customer must return or hand over the goods to us without delay and no later than fourteen (14) days from the date on which he/she notifies us of withdrawal from this Contract. The deadline is deemed to be met if the customer sends the goods before the expiry of the fourteen-day deadline. We shall bear the costs of returning the goods.
The customer shall only be liable for any diminished value of the goods if this loss in value is attributable to any use or handling of the goods which is not deemed necessary in order to verify the condition, features and functioning of the goods.
Exclusions from the statutory right of withdrawalThe statutory right of withdrawal shall not apply in the following cases:
- Delivery of goods which are not prefabricated and have been manufactured on the basis of a personal choice or according to customer specifications, or of goods which have clearly been tailored to the customer’s personal requirements.
- Delivery of sealed goods which are not suitable to be returned for reasons relating to health protection or hygiene if their seal has been removed after delivery.
- Delivery of audio or video recordings or computer software in sealed packaging if the seal has been removed after delivery.
- Delivery of newspapers, journals or magazines, excluding subscription contracts.
§ 4 Thomann’s 30-day money-back guarantee (extended returns policy)
- In addition to the statutory right of withdrawal for a period of fourteen (14) days, Musikhaus Thomann also offers customers a money-back guarantee for the 16 days following this period. The customer is entitled to return the goods we have supplied within thirty (30) days, no questions asked. The term shall commence when the goods have been received in full. The timely dispatch of the goods or the request to return the goods shall be deemed sufficient for meeting the deadline. The right to return goods can only be exercised by returning the goods unless the goods cannot be shipped as a package. Goods which are deemed unsuitable for shipment shall be collected from the customer by a carrier commissioned by Musikhaus Thomann It is therefore advisable to contact the customer service department in advance (for contact information see § 3, item 1).
- The 30-day money-back guarantee applies both to distance contracts in accordance with § 312c of the German Civil Code and to goods purchased in person at our Musikhaus Thomann store.
- Musikhaus Thomann shall bear the costs of return. We provide “free-way coupons” for this purpose (no requirement to assume the costs of sending the goods back to us in case of return; when returning goods without a free-way coupon, we request that you refrain from using express delivery or delivery services for which postage is not prepaid). We will commission a carrier to collect goods which are deemed unsuitable for shipping. Musikhaus Thomann regrets that it is unable to cover the shipping costs for return shipments from foreign countries as part of the 30-day money back guarantee.
- In the case of orders of media packaged in transparent film or sealed media such as CDs, audio cassettes, videos, DVDs, as well as newspapers and software, the right to return goods shall only apply if the respective goods are returned in the original sealed packaging or with the seal intact.
- The right to return goods shall be excluded altogether for goods which have been manufactured or altered according to customer specifications, as well as for bulk goods and items which are subject to wear and tear (e.g. strings, sticks, drumheads, cables, plectrums and reeds) and items which cannot be returned for hygiene reasons (e.g. mouth organs). The same applies to items that have special safety properties and for which the safety properties can no longer be guaranteed as the items have been used (e.g. stage molton due to flame retardancy).
- Should the customer make use of the right to return goods, Musikhaus Thomann shall be entitled to demand appropriate compensation for the period during which the goods remain in the customer’s possession.
- Furthermore, a customer exercising the right to return goods must compensate Musikhaus Thomann for the depreciation in the value of the goods if the customer is unable to return the goods in the proper condition because he/she is responsible for the deterioration or loss of the goods or any other deficiency. This shall not apply in cases where the deterioration of the goods is attributable solely to the inspection of the goods – for instance, as would have been possible for the customer in a store. Incidentally, the customer may avoid the obligation to pay compensation by desisting from using the goods as if they were his/her property and by refraining from any use which may reduce the value of the goods.
- If individual components of bundled merchandise or sets are returned within the 14-day statutory withdrawal period or the Thomann 30-day money-back guarantee period, the goods remaining in the customer’s possession shall be charged at the regular sales price.
- Please note that the provisions set out in § 4 shall not apply for the first 14 days (statutory right of withdrawal in accordance with § 3 of the General Terms and Conditions of Business) of the 30-day money-back guarantee period; instead these provisions shall only apply during the subsequent 16 days.
§ 5 Warranty and compensation
- 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 Musikhaus Thomann are not covered by the warranty.
- Signs of wear and tear from normal use are also excluded from the warranty.
- 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.
- 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.
- 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 unless Musikhaus Thomann is liable without limitation in accordance with § 5 item 7, in particular for detriment to life, body and health. If the customer is a business, the warranty period for new items shall be one year and six months from the transfer of risk, and for used items six months from this date, unless Musikhaus Thomann is liable without limitation in accordance with § 5 item 7, in particular for detriment to life, body and health.
- Warranty formalities shall otherwise be carried out in congruence with the legal regulations.
- Musikhaus Thomann 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 Musikhaus Thomann or a vicarious agent (e.g. the delivery service) of Musikhaus Thomann 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 Musikhaus Thomann shall be limited to foreseeable damage.
§ 6 Three-year Thomann guarantee
In addition to the statutory warranty, Musikhaus Thomann shall also provide a three-year guarantee in accordance with the following provisions:
- Musikhaus Thomann provides a guarantee for any defects arising during a period of three years from the transfer of the risk which can be proven to have been caused due to a material deficiency or a manufacturing error. Only customers who are consumers can assert claims under the guarantee; these claims are non-transferable.
- The following are excluded from the guarantee:
- Used equipment.
- Computer parts and accessories, unless otherwise specified in the respective item description.
- Products subject to wear through use or other wear and tear.
- Product defects caused as a result of failure to follow the instructions for use or of inappropriate use, exceptional environmental conditions, extraneous operating conditions, excessive strain or a lack of maintenance or care.
- Product defects caused by the use of accessories or supplementary or replacement parts which are not original components.
- Products which have been modified or supplemented.
- Slight deviations from the intended state which do not significantly affect the product’s value or its suitability for use.
- Product defects which are recognised by Musikhaus Thomann as being subject to the guarantee obligation shall be remedied as follows: at our discretion, the defective product shall either be repaired free of charge or replaced with a fully functional product (a subsequent model if necessary). Products and components which have been replaced shall become the property of Musikhaus Thomann
- Guarantee claims must be asserted within the official guarantee period. In order to do so, the product in question must be returned to Musikhaus Thomann with the original invoice by requesting a “free-way coupon”.
- Claims other than the right to remedy defects referred to in these terms and conditions of guarantee are not covered by this guarantee.
- The guarantee period for the product shall neither be extended nor renewed as a result of the provision of services under the guarantee.
- The customer’s warranty rights in accordance with § 5 and with the statutory regulations shall not be restricted by these terms and conditions of guarantee.
§ 7 Due date and payment terms
- Unless otherwise agreed in writing, invoices from Musikhaus Thomann 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.
- Musikhaus Thomann 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.
- 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 Musikhaus Thomann is able to prove that greater damages were suffered as a result of the default, Musikhaus Thomann shall be entitled to assert the corresponding claims on these grounds.
§ 8 Retention of title
- If the customer is a merchant within the meaning of the German Commercial Code, the goods supplied shall remain the property of Musikhaus Thomann 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, Musikhaus Thomann shall reserve the right of retention for the goods until the purchase price has been paid in full.
- 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 Musikhaus Thomann at risk until the purchase price has been paid in full. The customer hereby assigns to Musikhaus Thomann any future claims against the buyer in the amount of the purchase price agreed between Musikhaus Thomann and the customer, including interest and ancillary payments. Musikhaus Thomann accepts this assignment.
§ 9 Place of fulfilment and place of jurisdiction
- 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.
- The place of fulfilment for all services and products arising from business transactions with Musikhaus Thomann shall be Burgebrach, insofar as the customer is a merchant, a legal person governed by public law or a special fund under public law.
- If the customer is a merchant, legal person governed by public law or special fund under public law, Bamberg 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.
§ 10 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.
§ 11 Closing provision
If any of these provisions cannot be applied for whatever reason, this shall not affect the validity of the remaining provisions.
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