General Terms and Conditions

Table of Contents

  1. Scope of Application
  2. Conclusion of the Contract
  3. Right to Cancel
  4. Prices and Payment Conditions
  5. Shipment and Delivery Conditions
  6. Reservation of Proprietary Rights
  7. Warranty
  8. Liability
  9. Special conditions for repair services
  10. Special Conditions for the Processing of Goods According to Client's Specifications
  11. Redemption of Campaign Vouchers
  12. Redemption of Gift Vouchers
  13. Applicable Law
  14. Place of Jurisdiction
  15. Alternative Dispute Resolution

1) Scope of Application

1.1 These General Terms and Conditions of the company Kolberg Percussion GmbH (hereinafter referred to as "Seller”) shall apply to all contracts concluded between a consumer or a trader (hereinafter referred to as "Client”) and the Seller relating to all goods and/or services presented in the Seller's online shop. The inclusion of the Client’s own conditions is herewith objected to, unless other terms have been stipulated.

1.2 These Terms and Conditions regarding contracts for the supply of goods presented by the Seller in its print catalogue apply accordingly, unless expressly otherwise agreed upon.

1.3 Regarding contracts for the delivery of vouchers, these Terms and Conditions apply accordingly, unless expressly regulated otherwise.

1.4 For contracts regarding the delivery of vouchers, these Terms and Conditions shall apply accordingly, unless expressly agreed otherwise.

1.5 A consumer pursuant to these Terms and Conditions is any natural person concluding a legal transaction for a purpose attributed neither to a mainly commercial nor a self-employed occupational activity. A trader pursuant to these Terms and Conditions is any natural or legal person or partnership with legal capacity acting in the performance of a commercial or self-employed occupational activity when concluding a legal transaction.

2) Conclusion of the Contract

2.1 The product descriptions in the Seller’s online shop do not constitute binding offers on the part of the Seller, but are merely descriptions which allow the Client to submit a a binding offer.

2.2 The Client may submit the offer via the online order form integrated into the Seller's online shop. In doing so, after having placed the selected goods and/or services in the virtual basket and passed through the ordering process, and by clicking the button finalizing the order process, the Client submits a legally binding offer of contract with regard to the goods and/or services contained in the virtual basket. The Client may also submit his offer to the Seller by telephone, fax, e-mail, post or per online contact form.

2.3 In the case of ordered goods displayed shown in the Seller’s print catalogue, the Client may submit his offer by telephone, fax, e-mail or postal .. For this purpose, the Client may fill in the order form enclosed with the Seller’s print catalogue and send it back to the Seller.

2.4 The Seller may accept the Client’s offer within five days,

  • by transferring a written order confirmation or an order confirmation in written form (fax or e-mail), insofar as receipt of order confirmation by the Client is decisive, or
  • by delivering ordered goods to the Client, insofar as receipt of goods by the customer is decisive, or
  • by requesting the Client to pay after placing his order.

The contract shall be concluded at the time when one of the aforementioned alternatives firstly occurs. Should the Seller not accept the Client's offer within the aforementioned period of time, this shall be deemed as rejecting the offer, with the effect that the Client is no longer bound by his statement of intent.

2.5 If the Client chooses "PayPal Express” when placing his order, payment processing is handled by the payment service provider PayPal (Europe) S.a.r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter referred to as “PayPal”). The PayPal terms of use will apply; they can be viewed at: https://www.paypal.com/de/webapps/mpp/ua/useragreement-full. In case the Client has no PayPal account, the conditions for payments without PayPal account will apply; they can be viewed at: https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.

If the Client chooses “PayPal Express” as payment method, he also initiates a payment order to PayPal by clicking the button finalizing the order process. In this case, the Seller hereby declares his acceptance of the Client’s offer at the time when the Client initiates the payment transaction by clicking the button finalizing the ordering process.

2.6 In case of an order via the Seller’s online order form, the text of the contract will be stored by the Seller and will be sent to the Client in writing including these Terms and Conditions (for example via e-mail, fax or letter) after the Client has submitted his order. In addition, the text of the contract will be stored on the Seller's website and can be found by the Client via the password-protected customer account by entering the respective login information, provided that the Client has created a customer account in the Seller’s online shop prior to submitting his order.

2.7 Prior to submitting a binding order via the Seller’s online order form, the Client may recognize input errors by attentively reading the information displayed on the screen. Use of the enlargement function of the browser to enlarge the display on the screen may be an effective method for better recognizing input errors.
The Client can correct all the data entered via the usual keyboard and mouse function during the electronic ordering process, until he clicks the button finalizing the ordering process.

2.8 The German and the English language are exclusively available for the conclusion of the contract.

2.9 Order processing and contacting usually take place via e-mail and automated order processing. It is the Client’s responsibility to ensure that the e-mail address he provides for the order processing is accurate so that e-mails sent by the Seller can be received at this address. Particularly, it is the Client`s responsibility, if SPAM filters are used, to ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller with the order processing can be delivered.

3) Right to Cancel

3.1 Consumers are entitled to the right to cancel.

3.2 Detailed information about the right to cancel is provided in the Seller’s instruction on cancellation.

3.3 The right to cancel does not apply to consumers who are not nationals of a member state of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address are located outside the European Union at the time of concluding the contract.

4) Prices and Payment Conditions

4.1 Unless otherwise stated in the product descriptions, prices indicated are total prices and include the statutory value-added tax. Any possible additional delivery and dispatch costs are specified separately in the respective product description.

4.2 Payment can be made using one of the methods mentioned in the Seller’s online shop.

4.3 In case of delivery to countries outside the European Union, additional costs may be incurred in individual cases for which the Seller is not responsible and which have to be borne by the Client. This includes, for example, transfer fees charged by banking institutes (transfer charges, exchange fees) or import duties or taxes (customs). Such additional costs regarding money transfer may also be incurred, if the Client carries out the payment from a country outside the European Union, even if delivery is not made in a country outside the European Union .

4.4 If prepayment by bank transfer has been agreed upon, payment is due immediately after conclusion of the contract, unless the parties have arranged a later maturity date

4.5 If the payment method “purchase on account” is selected, the purchase price is due after the goods have been delivered and invoiced. In this case, the purchase price is to be paid within 7 (seven) days from receipt of the invoice without deduction, unless otherwise agreed. The Seller reserves the right to offer the payment method “purchase on account” only up to a certain order volume, and he may refuse this payment method if the specified order volume is exceeded. In this case, the Seller will inform the Client in his payment information displayed in the online shop of a corresponding payment restriction.

4.6 If the payment method “purchase on account” via Heidelpay is selected, the purchase price is due after the goods have been delivered and invoiced. In this case, the purchase price shall be paid to Heidelberger Payment GmbH, Vangerowstr. 18,69115 Heidelberg (hereinafter referred to as "Heidelpay") within 14 (fourteen) days of receipt of the invoice without deduction. The payment method purchase on account requires a successful credit assessment by Heidelpay. If the Client is permitted to pay via the payment method “purchase on account” after the creditworthiness has been verified, the payment is processed in cooperation with Heidelpay, to which the Seller assigns his claim for payment. In this case, the Client may make only payments with debt-relieving effect to Heidelpay . The Seller shall also remain responsible for general customer enquiries, e. g. regarding the goods, delivery time, dispatch, returns, complaints, declarations of revocation and returns or credit notes, even when the payment method “purchase on account” via Heidelpay is selected.
The payment method “invoice purchase” via Heidelpay is excluded,
- if the order value is less than 25,00 Euros,
- if the delivery address provided by the Client is not identical with the billing address, in particular, if a packing station or a P. O. box is specified as the delivery address, or
- if the customer is under 18 years of age.
In addition, the Seller reserves the right to offer the payment method “purchase on account” via Heidelpay only up to a certain order volume and may reject this payment method if the specified order volume is exceeded. In this case, the Seller will inform the Client in his payment information displayed in the online shop of a corresponding payment restriction.

4.7 When payments are made using a payment method offered by PayPal, handling of payments takes place via the payment service provider PayPal ((Europe) S.a. r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter referred to as “PayPal”) subject to the PayPal terms of use which can be viewed at: https://www.paypal.com/de/webapps/mpp/ua/useragreement-full. In case the client has no PayPal account, the conditions applicable for payments without PayPal account will be effective. They can be viewed at: https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.

4.8 If the payment method "immediate bank transfer" is selected, payment processing is carried out via the payment service provider SOFORT GmbH, Theresienhöhe 12,80339 Munich (hereinafter referred to as "IMMEDIATE"). In order to be able to pay the invoice amount via “immediate bank transfer,” the Client must have an online banking account with the PIN/TAN method that is activated for participation in “immediate bank transfer,” he must have the appropriate credentials during the payment process, and he must confirm the payment instruction to IMMEDIATE . The payment transaction will be executed immediately afterwards and the Client’s bank account debited accordingly. Further information on the payment method “immediate bank transfer” can be called up by the Client on the Internet at https://www.sofort.com/ger-DE/kaeufer/su/so-funktioniert-sofort-ueberweisung/.

5) Shipment and Delivery Conditions

5.1 Goods are generally delivered on dispatch route and to the delivery address indicated by the Client, unless agreed otherwise. In the case of an order placed via the Seller's online order form, the delivery address specified in the online order form shall be decisive. However, in case the Client selects the payment method PayPal, the delivery address deposited with PayPal at the date of payment shall be decisive.

5.2 Should the assigned transport company return the goods to the Seller, because delivery to the Client was not possible, the Client bears the costs for the unsuccessful dispatch. This shall not apply, if the Client exercises his right to cancel effectively, if the delivery cannot be made due to circumstances beyond the Client's control, or if he has been temporarily impeded from receiving the offered service, unless the Seller has notified the Client for a reasonable time in advance about the service.

5.3 If goods are delivered by freight carrier, the goods shall be delivered free curb, that is to say, to the public curb stones which are closest to the delivery address, unless otherwise stipulated in the shipping information displayed in the Seller’s online shop or unless otherwise agreed.

5.4 In case the Client is a trader, the risk of accidental destruction and accidental deterioration of the sold goods shall be transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment. In case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods shall in principle be transferred to the Client upon delivery of the goods to the Client or to an authorized recipient. Deviating from this, even in case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods is transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment, if the Client has instructed the freight forwarder, carrier or other person or institution designated with the task of performing shipment to carry out the delivery of the goods and if the choice of this person or institution was not previously offered by the Seller.

5.5 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This only applies if the Seller is not responsible for the non-supply and if he has concluded a concrete hedging transaction with the supplier. The Seller shall make all reasonable efforts to obtain the goods. In case of non-availability or partial availability of the goods he shall inform the Client and grant him immediately counterperformance.

5.6 Should the Client collect the goods himself, the Seller informs the Client by e-mail that the goods are available for collection. After receiving the e-mail, the Client may collect the goods in consultation with the Seller. In this case, shipment costs will not be charged.

5.7 Vouchers will be provided to the Client as follows:

6) Reservation of Proprietary Rights

If the Client is a consumer, the Seller retains title of ownership to the delivered goods until the purchase price owed has been paid in full.

6.1 If the Client is a trader, the Seller reserves title to the goods delivered until the fulfillment of all claims arising out of the current business relationship.

6.2 If the Client is a trader, he is entitled to resell the reserved goods in the course of regular business operations. All claims resulting from such course of business against a third party shall herewith be assigned in advance to the Seller in the amount of the respective invoice value (including VAT). This assignment of claims shall be valid regardless of whether the reserved goods are processed prior to or after resale or not. The Client remains entitled to collect the claims even after assignment. However, the Seller shall refrain from collecting the claims as long as the Client meets his payment obligations, he is not in default, and no application has been lodged to open insolvency proceedings.

7) Warranty

Should the object of purchase be deficient, statutory provisions shall apply. Deviating therefrom, the following shall apply:

7.1 For traders,

  • a marginal defect shall generally not constitute warranty claims defects,
  • the Seller may choose the type of subsequent performance,
  • for new goods, the limitation period for defects shall be one year from transfer of risk,
  • for used goods, rights and claims for defects are generally excluded,
  • the limitation period shall not recommence if a replacement delivery is carried out within the scope of liability for defects.

7.2 For consumers the limitation period regarding warranty claims for used goods shall be one year from delivery of goods to the Client except for the restrictions in the following section.

7.3 The aforementioned limitations of liability and the restrictions of limitation periods do not apply

  • to a product, which was not used, in accordance with its usual application, for building construction and which was the cause of the building's defectiveness,
  • to claims for damages and reimbursement of expenses by the Client.
  • If the Seller has fraudulently concealed the defect.

7.4 Furthermore, for traders the statutory limitation periods for recourse claims pursuant to section 478 of the German Civil Code (BGB) remain unaffected.

7.5 If the Client is a businessperson pursuant to section 1 of the German Commercial Code (HGB) he has the commercial duty to examine the goods and notify the Seller of defects pursuant to section 377 HGB. Should the Client neglect the obligations of disclosure specified therein, the goods shall be deemed approved.

7.6 If the Client is a consumer, the forwarding agent has to be immediately notified of any obvious transport damages and the Seller has to be informed accordingly. Should the Client fail to comply therewith, this shall not affect his statutory or contractual claims for defects.

8) Liability

The Seller shall be liable to the Client for any contractual and quasi-contractual claims and for claims of liability in tort regarding damages and effort compensation as follows:

8.1 The Seller shall face unlimited liability regardless of the legal ground

- in case of intent or gross negligence,
- in case of injuries of life, body, or health resulting from intent or negligence,
- in case of a promise of guarantee, unless otherwise provided,
- in case of liability resulting from mandatory statutory provisions such as the product-liability-law.
.

8.2 If the Seller negligently infringes an essential contractual duty, the liability to pay damages shall be limited to the foreseeable, typically occurring damage, unless unlimited liability applies pursuant to the aforementioned Section. Essential significant contractual obligations are obligations the contract imposes on the Seller according to its content to meet the purpose of the contract and whose fulfillment is essential for the due and proper implementation of the contract and on the fulfillment of which the Client can regularly rely.

8.3 For the rest, the Seller’s liability is excluded.

8.4 The aforementioned provisions on liability apply also to the Seller’s liability regarding his legal representatives and vicarious agents.

9) Special conditions for repair services

If the seller is responsible for the repair of a customer's item under the terms of the contract, the following shall apply:

9.1 Repair services shall be provided at the seller's registered office.

9.2 The seller shall render his services at his discretion either in his own person or by qualified personnel selected by him. The seller may also make use of the services of third parties (subcontractors) who act on his behalf. Unless otherwise stated in the seller's service description, the customer has no right to select a specific person to perform the desired service.

9.3 The customer must provide the seller with all information necessary for the repair of the item unless its procurement does fall within the seller's scope of duties according to the contents of the contract. In particular, the customer must provide the seller with a comprehensive description of the defect and inform him of all circumstances which may be the cause of the defect found.

9.4 Unless otherwise agreed, the customer must send the item to be repaired to the seller's registered office at his own expense and risk. The seller recommends the customer to conclude a transport insurance for this purpose. Furthermore, the seller recommends the customer to send the goods in suitable transport packaging in order to reduce the risk of transport damage and to conceal the contents of the packaging. The seller will immediately inform the customer of obvious transport damage so that the customer can assert any rights he may have against the transport company.

9.5 The return of the goods shall be at the customer's expense. The risk of accidental loss and accidental deterioration of the item passes to the customer when the item is handed over to a suitable transport person at the seller's place of business. At the customer's request, the seller will conclude a transport insurance for the goods.

9.6 The customer can also transfer the item to be repaired at the seller's place of business and collect it again from the seller if this results from the seller's service description or if the parties have made a corresponding agreement in this respect. In this case, the above provisions regarding the bearing of costs and risks shall apply accordingly when the goods are dispatched and returned.

9.7 The aforementioned regulations do not limit the statutory rights of the customer in the event of the purchase of goods from the seller.

9.8 The seller shall be liable for defects in the repair service provided in accordance with the provisions regarding statutory liability for defects.

10) Special Conditions for the Processing of Goods According to Client's Specifications

10.1 If, according to the content of the contract, the Seller is responsible for the delivery of the goods and also the processing of the goods in accordance with the Client’s specifications, the Client must provide the Seller with all content needed for processing such texts, images or graphics in the file formats, formatting, image and file sizes specified by the Seller and grant him the rights of use required for this purpose. The Client is solely responsible for the procurement and acquisition of rights to this content. The Client declares and accepts responsibility for the fact that he has the right to use the content provided to the Seller. In particular, he shall ensure that no third-party rights are infringed (in particular, copyrights, trademarks, and personal rights).

10.2 The Client shall indemnify the Seller from claims of third parties asserted against the Seller in connection with a violation of their rights by the Seller’s contractual use of the Client’s content. The Client shall also bear the reasonable costs of the necessary legal defense, including all court and lawyer's fees according to the statutory rate. This shall not apply if the Client is not responsible for the infringement. In the event of claims by third parties, the Client shall be obliged to provide the Seller promptly, truthfully, and completely with all information that is necessary for the verification of the claims asserted for a corresponding defense.

10.3 The Seller reserves the right to refuse processing orders, if the content provided by the Client for this purpose violates legal or official prohibitions or morality. This shall apply in particular to the provision of content that is anti-constitutional, racist, xenophobic, discriminatory, offensive, or youth-endangering, and/or if it glorifies violence.

11) Redemption of Campaign Vouchers

11.1 Vouchers which are issued by the Seller free of charge, for a specific period of validity in the context of promotional activities and which cannot be purchased by the Client (hereinafter to as "campaign vouchers”) can be redeemed onla in the Seller’s online shop and only within the indicated time period.

11.2 Individual products may be excluded from the voucher campaign, if such a restriction results from the conditions of the campaign voucher.

11.3 Campaign vouchers must be redeemed prior to the conclusion of the order procedure. Subsequent offsetting is not possible.

11.4 In case of an order, several campaign vouchers can be redeemed.

11.5 If the value of the campaign voucher is not enough for the order, the Client may choose one of the remaining payment methods offered by the Seller to pay the difference.

11.6 The campaign voucher credit will not be redeemed in cash and is not subject to any interest.

11.7 The campaign voucher will not be redeemed if the Client, in the context of his legal right to cancel, returns goods paid fully or partially by a campaign voucher.

11.8 Campaign vouchers are only intended for the use of the person designated on the voucher. Transferring the campaign voucher to a third party is not permitted. The Seller is entitled but not obliged to check the entitlement of the respective voucher owner.

12) Redemption of Gift Vouchers

12.1 Vouchers which can be purchased via the Seller’s online shop (hereinafter to as "gift vouchers") can be redeemed only in the Seller’s online shop.

12.2 Gift vouchers and remaining assets of gift voucher can be redeemed by the end of the third year following the year of the gift vouchers' purchase. Remaining assets will be credited to the Client’s voucher account.

12.3 Gift vouchers must be redeemed prior to the conclusion of the order procedure. Subsequent offsetting is not possible.

12.4 In case of an order, several vouchers can be redeemed.

12.5 Gift vouchers can be used only for the purchase of goods and not for the purchase of other gift vouchers.

12.6 If the value of the gift voucher is not enough for the order, the Client may choose one of the remaining payment methods offered by the Seller to pay the difference.

12.7 The gift voucher credit will not be redeemed in cash and is not subject to any interest.

12.8 The gift voucher is transferable. The Seller may render performance with debt-discharging effect to the respective owner who redeems the gift voucher in the Seller’s online shop. This does not apply, however, if the Seller has knowledge or grossly negligent ignorance of the non-entitlement, legal incapacity, or of the missing right of representation regarding the respective owner.

13) Applicable Law

13.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties under exclusion of the laws governing the international purchase of movable goods. For consumers, this choice of law applies only to the extent that the granted protection is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.

13.2 Furthermore, this choice of law regarding the right to cancel does not apply to consumers who are not nationals of a Member State of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address are located outside of the European Union at the time of concluding the contract.

14) Place of Jurisdiction

If the Client is a businessman, a legal entity of public law, or a separate estate under public law with its seat in the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract. If the Client is domiciled outside the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract,provided that the contract or claims from the contract can be assigned to the Client’s professional or commercial activities. In any event however, regarding the aforementioned cases, the Seller is entitled to appeal to the court which has jurisdiction over the area where the Client’s place of business is located.

15) Alternative Dispute Resolution

15.1 The EU Commission provides on its website the following link to the ODR platform: https://ec.europa.eu/consumers/odr.

This platform shall be a point of entry for out-of-court resolutions of disputes arising from online sales and service contracts concluded between consumers and traders.

15.2 The Seller is neither obliged nor prepared to attend a dispute settlement procedure before an alternative dispute resolution entity.