GTC Pre-owned Instruments
Last updated 20 February 2019
§ 1 GENERAL
1.1 These Terms and Conditions apply to the free use of our website (hereinafter referred to as Herbert WURLITZER) and to all agreements concluded with you as our user (hereinafter referred to as ‘Private Seller’, ‘User’, ‘Seller’ or ‘Purchaser’) via Herbert WURLITZER. The Terms and Conditions apply to entrepreneurs as defined in Section 14 of the German Civil Code (BGB) (‘Entrepreneur’) as well as to consumers as defined in Section 13 BGB (‘Consumer’). These Terms and Conditions do not apply to purchase contracts concluded on-site at a physical space of Herbert WURLITZER.
Our website is operated under the trademark Herbert WURLITZER GmbH, a German limited liability company with its registered office at Rückertstraße 20, 91413 Neustadt a.d. Aisch, Germany, managing directorS: Bernd A. Wurlitzer, Prof. Ulrich Wurlitzer , Registration number: AG Fürth (Bay) HRB 3914
Herbert WURLITZER GmbH
91413 Neustadt a.d. Aisch
(in the following: Herbert WURLITZER)
1.2 By using the website of Herbert WURLITZER (currently available at wurlitzerclarinets.com, wurlitzerklarinetten.de) you are agreeing to these Terms and Conditions and are hereby entering into a contract with Herbert WURLITZER. This contract is subject to the law of the Federal Republic of Germany. These Terms are the only terms that apply. We will not accept general contractual clauses, which deviate from these.
Communication with you or the provision of services by us will not implicate acceptance of any deviating general contractual clauses.
Please print out these terms as we will not store older contractual terms for you.
To use our services you must have full legal capacity and be at least 18 years old.
1.3 These Terms and Conditions apply, unless an alternating clause has been explicitly made, irrespective of whether you are consumer, entrepreneur or merchant.
§ 2 SUBJECT MATTER AND DESCRIPTION OF SERVICES
2.1 Herbert WURLITZER “PRE-OWNED INSTRUMENTS” is an internet platform which allows private sellers, (‘user’, musicians, private persons) to offer their used Herbert WURLITZER clarinets for sale. At the same time it allows users to buy these instruments. (See Sales of pre-owned instruments § 12, Seller Terms and Conditions §13-19 and Purchaser Terms and Conditions § 20-33)
2.2 For the purpose of sale the private seller (‘User’) can fill out a form and provide images and descriptions of the instrument. The instrument will only go online after acceptance by Herbert WURLITZER.
2.3 In any sale or purchase of an instrument Herbert WURLITZER is never a contract partner. Herbert WURLITZER only provides the platform that makes these transactions possible.
2.4 Herbert WURLITZER reserves the right, at its sole discretion, to modify, discontinue or terminate the site or services or to modify these Terms and Conditions, at any time and without prior notice.
2.5 If you are a private seller/ (‘user’) and have submitted a listing for an instrument to the Herbert WURLITZER website and have been contacted by another user with respect to purchasing the foregoing, you may not sell such instrument independently of Herbert WURLITZER.
§ 3 INTELLECTUAL PROPERTY RIGHTS, USERS OBLIGATIONS, EXTERNAL LINKS
3.1 The contents on the Herbert WURLITZER website may not be copied or disseminated or otherwise used or reproduced without the previous consent of the legal owner. This shall also apply to copying using ‘robot/crawler’ search engine technologies or other automatic mechanisms.
3.2 Our website includes links to external sites, which may include links to further sites. We are not responsible for the content of these sites or for anything provided by them.
§ 4 ELECTRONIC COMMUNICATIONS
We will communicate with you electronically by email. For contractual purposes, you consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide you electronically are legally binding, unless applicable laws require a different form of communication.
§ 5 DATA PROTECTION
§ 6 OUR LIABILITY
6.1 Herbert WURLITZER strives to always ensure that the website is available to users without interruption and that transmissions are error-free. However, this cannot be guaranteed at all times. Further, access to the Herbert WURLITZER website can be occasionally interrupted or restricted to allow maintenance and servicing to be carried out or to introduce new facilities. Herbert WURLITZER strives to limit the duration and frequency of these temporary interruptions.
6.2 Herbert WURLITZER shall be liable for damage only in the event of intent and gross negligence on the part of Herbert WURLITZER or one of its vicarious agents. If Herbert WURLITZER or one of its vicarious agents breaches a fundamental contractual obligation in a manner that endangers the purpose of the contract, liability shall be limited to the typical damage that Herbert WURLITZER could reasonably foresee at the time of entering into the contract, unless the breach of obligation is intentional or grossly negligent.
6.3 Herbert WURLITZER shall not be liable under section for lack of economic success, loss of profits and indirect losses.
6.4 The limitations of liability shall apply mutatis mutandis to employees, representatives and subcontractors of Herbert WURLITZER.
6.5 Any liability of Herbert WURLITZER for guarantees given and claims under the Sale Liability Act shall remain unaffected.
6.6 Herbert WURLITZER is not liable for any false information found on the site.
§ 7 IMAGE RIGHTS / USE OF IMAGES / RIGHTS OF THIRD PARTIES
7.1 The participating seller/user is hereby informed that for the publication of the provided photo-material a transfer of rights is required. The participating seller/user hereby confirms that they has the rights to the supplied photographs, and that they irrevocably authorizes the unlimited and unrestricted publication of these unaffected by time or location. You acknowledge and agree that the foregoing image/license rights are granted on a royalty-free basis.
The photographer retains full ownership rights of the image.
7.2 The participating seller/user hereby confirms that no rights of third parties are harmed through the uploaded photos of objects or locations.
§ 8 VALIDITY
The agreement keeps its validity if the website changes its name or holding.
In case of publication(s) the participating seller/user will not make any claims against Herbert WURLITZER or third parties (for example publishing company, provider, Webmaster).
Both contract parties are entitled to store the image material without any limitation in time and location, modified or unmodified and in physical or digital form.
§ 9 OBLIGATIONS OF THE PRIVATE SELLER/(‘USER’)
The participating private seller/(“user’) is obligated to provide the necessary data completely and correctly and to provide notification of changes without delay. This applies, in particular, to address details and the email address.
The private seller/user shall ensure that his or her content on Herbert WURLITZER do not breach statutory regulations or third party rights.
§ 10 COMPLIANCE
Herbert WURLITZER acts along to the German Anti-Money Laundering Act.
We point out that it is strictly forbidden to transfer unclean money via Herbert WURLITZER and will inquire in case of doubt.
It is strictly forbidden to offer counterfeit or stolen instruments on Herbert WURLITZER.
§ 11 INDEMNITY
The participating private seller/( user’) shall compensate Herbert WURLITZER for all damage arising from a breach of the foregoing provisions where the private seller/user is responsible for the breach. The compensation shall also comprise the costs of any necessary legal defence. Herbert WURLITZER shall inform you without delay if a third party assert such claims against them and shall give you the opportunity to respond.
SALES OF PRE-OWNED INSTRUMENTS
SELLER TERMS AND CONDITIONS
§ 12 SALE OF PRE-OWNED INSTRUMENTS AND ROLE OF HERBERT WURLITZER
12.1 By filling out the provided form, you may offer your pre-owned instrument in order to sell it. When you sell an instrument, you are the sole contractor with the purchaser. Herbert WURLITZER only grants you (‘third parties’) the possibility to offer your instrument on wurlitzerclarinets.com/wurlitzerklarinetten.de and is neither a buyer nor seller of these instruments. Your contract will always be with the buyer. Herbert WURLITZER is not a contract partner and not responsible for the transaction of the sale and any complaints.
12.2 As between you and us, Herbert WURLITZER will not be deemed as the seller of the instruments that are purchased via wurlitzerclarinets.com/wurlitzerklarinetten.de, but as a platform that implements transition between sellers and buyers on a commission basis as agreed upon via email between Herbert WURLITZER and the private seller selling instrument via Herbert WURLITZER.
12.3 Once a seller decides to make an instrument available on Herbert WURLITZER it must remain on the site for 14 days before the seller can remove it. After this period has elapsed It is up to the discretion of the seller how long an instrument remains on the platform.
12.4 Transaction Restrictions
If you are a private seller /(‘user’) and have submitted a listing for an instrument to the Herbert WURLITZER website and have been contacted by another user with respect to purchasing either of the foregoing, you may not sell such instruments independently of Herbert WURLITZER. If Herbert WURLITZER is notified of such a transaction, Herbert WURLITZER may decide to refrain from working again with the private seller/(‘user’) in this case.
§ 13 INSTRUMENTS
13.1 Only instruments manufactured by Herbert WURLITZER can be offered on the site.
13.2 The description of the instrument must be truthful. This includes the description of any defects. The seller is liable for inaccurate or incorrect information.
13.3 Herbert WURLITZER helps the seller to set a market price. Herbert WURLITZER reserves the right to reject instruments with non-market-based price.
13.4 Sellers must provide and declare the provenance of the instrument as well as documents of authentication, such as the invoice when purchased. Although Herbert WURLITZER takes great care in examining these documents, Herbert WURLITZER is not responsible for their accuracy and authenticity. The responsibility for this is borne by the seller.
§ 14 INSPECTING THE INSTRUMENT BY THE BUYER
Herbert WURLITZER instructs the sellers to indicate possible defects in the description of the offered instrument. Buyers should inspect each item after delivery and can withdraw from the contract along to our policy (See §25).
§ 15 PAYMENT AND COMMISSIONS
15.1 Once a sale of an instrument via wurlitzerclarinets.com/wurlitzerklarinetten.de has occurred, Herbert WURLITZER will credit your account in an amount to be determined in accordance with Herbert WURLITZER commission terms at time of purchase.
15.2 Herbert WURLITZER takes 10% commission fee for the completed sale.
The commission is of the net price. The commission has to be paid by the seller and and is due when a sale occurs.
15.3 Subject to Herbert WURLITZER receipt of confirmation of delivery and inspection by the purchaser, Herbert WURLITZER will credit the seller’s account with the corresponding payment, deducting the commission, and in case of handling the transport by Herbert WURLITZER also the insurance fee, transport and money transfer costs – following the expiration of the return period.
§ 16 SHIPPING AND HANDLING
Applicable taxes for which you are responsible and which will be separately identified on the buyers receipt, will be added if due. Nevertheless Herbert WURLITZER is not responsible for the correctness of these taxes and the seller must check their accuracy.
As a seller you must be aware that if your amount of sales to a different European country exceeds a certain sum (threshold), (see VAT & Sale Tax), all sales above must be taxed in the country of destination.
16.2 Herbert WURLITZER R provides insurance to all purchases handled by Herbert WURLITZER themselves. They cover also the transport back to the seller in case of instrument returns as described in §31. It will be calculated once the transaction is determined. If buyer has their own insurance, please indicate in the shopping cart.
Shipping takes place by DHL or similar transport firms.
§ 17 INSTRUMENT RETURNS
The Terms and Conditions of Herbert WURLITZER current Return Policy, which is pointed out in the Purchasers Terms, apply to any pre-owned instruments that are sold or purchased via Herbert WURLITZER.
Please read carefully in Purchaser Terms and Conditions §31.
You agree to comply with the terms and conditions of Herbert WURLITZER return policy, at time of purchase, that are applicable to any instruments sold via Herbert WURLITZER.
§ 18 DAMAGED INSTRUMENTS
The Terms and Conditions of Herbert WURLITZER’s current Damaged Instruments policy, which is pointed out in the Purchasers Terms, apply to any instruments that are sold or purchased via Herbert WURLITZER.
Please read carefully in Purchaser Terms and Conditions §31.
You agree to comply with the terms and conditions of Herbert WURLITZER’s Damaged Instruments policy, at time of purchase, that are applicable to any instruments sold via Herbert WURLITZER.
§ 19 RESPONSIBILITY OF PRE-OWNED INSTRUMENTS
You are the sole and exclusive owner of the instrument you make available on Herbert WURLITZER and you have all rights that are necessary to grant to Herbert WURLITZER the rights to sell and to publish the instrument. You confirm that the instrument that you make available through Herbert WURLITZER, use and exploitation thereof as expressed under these terms will not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights, other intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable law.
PURCHASER TERMS AND CONDITIONS
These Terms and Conditions are valid together with the Sellers Terms and Conditions which you will have to sign during the buying process.
§ 20 PURCHASES OF PRE-OWNED INSTRUMENTS AND ROLE OF HERBERT WURLITZER
When you purchase a pre-owned instrument, you are not purchasing the instrument from Herbert WURLITZER, but from the seller (the private seller/user or another person commissioned by them). Herbert WURLITZER only grants third parties the possibility to offer instruments on HerbertWURLITZER.com and is neither a buyer nor a seller of these instruments. Your contract will always be with the seller. Herbert WURLITZER is not a contract partner and not responsible for the transaction of the sale and any complaints.
§ 21 PRICES AND PAYMENT
21.1 The purchaser must pay for all shipping and handling which is conditional on the order’s value, weight dimensions and shipping destination.
21.2 The listed prices are final for customers from and within the European Union. In case of other countries, they may not include all taxes, especially import taxes and import VAT which will be charged separately by the art transportation firm and you will receive an extra receipt for them.
21.3 When you purchase instruments via Herbert WURLITZER you agree to pay the amount via our indicated payment options to the account specified by Herbert WURLITZER (on the website or via email).
21.4 Purchase price, along with shipping and handling charges are immediately payable, without deduction.
21.5 As soon as Herbert WURLITZER has received the payment, the shipping will be arranged.
The shipping will take about 10 to 14 days until the instrument arrives at your destination. If you wish express transportation, please advise the seller. This will cause extra costs which you will have to pay in advance.
21.6 If the customer pays with PayPal the transaction will be carried out straight away. If the customer opts to pay by bank transfer they will receive an order information, after which the money transfer has to be executed right away in order to arrive at Herbert WURLITZER within a set period of 7 days.
21.7 Herbert WURLITZER will collect your billing and pass it on to the seller and to the shipping company. Herbert WURLITZER will process your payment and pass the amount to the seller, deducting our commission, transport and insurance costs.
§ 22 TRUSTED SERVICE
22.1 The paid amount will be kept safe at Herbert WURLITZER until the instrument has been approved by the buyer. After the granted withdrawal period is over the payment is released to the seller.
§ 23 RESERVATION OF TITLE
The goods shall remain the property of the seller until the purchase price is paid in full.
§ 24 FORMATION OF A CONTRACT
24.1 The presentation and promotion of available instruments on the website does not represent a formalized offer and the prices are subject to change before a binding offer has been made.
24.2 With the consignment of an order through Herbert WURLITZER by clicking the ‘buy’ button you declare a legally binding acceptance of offer.
24.3 Herbert WURLITZER will confirm the admission instantly, by sending an email. In such an email there will not yet be a declaration of acceptance, unless it explains not only the confirmation of admission but also, explicitly, the acceptance.
24.4 A purchase agreement only comes into existence once we mandate the shipping of the product with our distribution partner and you receive a confirmation of this via email (in the following: delivery confirmation).
24.5 The purchased instrument will be shipped directly to you. The Terms and Conditions of Herbert WURLITZER return policy apply to any instruments that you purchase via the Herbert WURLITZER website.
24.6 In addition to your cancellation right according to §25 you may cancel your order at any time before consignation of the associated delivery confirmation.
§ 25 WITHDRAWAL OF A CONTRACT
25.1 If you buy an instrument offered by a private person, you have no right of withdrawal from the contract.
25.2 If you buy an instrument offered by Herbert WURLITZER GmbH, you have the right to withdraw from your contract of purchase without giving any reason.
The withdrawal period will expire after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the instrument.
In the case of a contract relating to multiple goods ordered by you in one order and delivered separately, the period shall begin on the day on which you acquire, or a third party other than the carrier and indicated by you acquires physical possession of the last good. To exercise the right of withdrawal you must inform us (Herbert WURLITZER GmbH, Rückertstraße 20, 91413 Neustadt a.d. Aisch, Germany, telephone no. +49 9161 2625, e-mail firstname.lastname@example.org) of your decision to withdraw your contract or by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. We will pass the information on to the seller.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
25.3 Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction.
Fees for the money transfer have to be paid by you.
If the instrument was already delivered to you, we will withhold reimbursement until the seller has received the instrument back.
The deadline is met if you send back the instrument before the above set period has expired. You will have to pay all costs of returning the instrument.
You are only liable for any diminished value of the instrument resulting from the handling other than what is necessary to keep the nature, characteristics and surfaces of the instruments.
For handling of instrument returns see §31.
End of information on right of withdrawal.
25.4 Model withdrawal form
(Complete and return this form only if you wish to withdraw from the contract. Herbert WURLITZER will pass it on to the seller)
Herbert WURLITZER GmbH, Rückertstraße 20, 91413 Neustadt a.d. Aisch, Germany, telephone no. +49 9161 2625, e-mail email@example.com –I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
–Ordered on (*)/received on (*)
–Name of purchaser(s)
–Address of purchaser(s)
–Signature of purchaser(s) (only if this form is notified on paper),
(*) Delete as appropriate.
§ 26 SHIPPING
Shipment takes place worldwide.
If your order is to be sent by more than one transport, it may be the case that you receive a separate delivery confirmation email for each transport. In this instance a separate purchase agreement will come into existence for each of the products.
§ 27 PRE-OWNED INSTUMENT DELIVERY
The purchaser will be contacted in terms of the delivery date.
If the instrument cannot be delivered out of various reasons, like absence of the purchaser, the purchaser is liable for the resulting costs.
§ 28 INSURANCE
Herbert WURLITZER instructs the seller to send the instrument with a valid insurance.
§ 29 HANDLING OF THE INSTRUMENT
All instruments have to be handled with greatest care. You must be aware that they are irretrievable goods. Please consider carefully in which condition the instrument is placed; environments that contain high levels of humidity and sunlight are not advised, also e too dry environment can lead to damages. Changes that occur to the instrument due to the passing of time are not considered defects.
Similarly any damages sustained through inappropriate handling after an instrument has been received are not considered to be a fault of the instrument. Instruments are fragile and must be handled with the utmost care.
§ 30 DAMAGED PRE-OWNED INSTRUMENTS
Check the instrument immediately when delivered. In case you find a damage, please act as follows:
(a) – Keep the original packaging!
(b) – Take photos of damaged instrument and packaging. Please email these photos immediately to firstname.lastname@example.org
(c) – Within five days of your pre-owned instrument delivery date, please email email@example.com to give us your order information for the instrument return.
Send the instrument back to the seller with a valid insurance.
§ 31 PRE-OWNED INSTRUMENT RETURNS
31.1 A musical instrument is not a consumer good and all acting persons have a high responsibility to handle it safely to keep away any danger.
You shall send back the instrument safely to the seller by without undue delay and in any event not later than after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the instrument.
(a) Contact us by email at firstname.lastname@example.org using the withdrawal form, found at §25. Or by phone, on +49 9161 2625, between 9-18 Monday to Friday (Central European Time) and we will assist you. You can return the pre-owned instrument without telling us a reason, but we are happy if you give us a hint.
(b) Send the pre-owned instrument directly to the seller
(c) Herbert WURLITZER requires the successful return of the good as proof that the buyer has complied correctly with our instrument return policy. Once we are informed of the return by seller, Herbert WURLITZER will return the full amount to the purchaser (instrument cost, VAT and original shipping cost).
31.3 Neither Herbert WURLITZER nor the seller is responsible for undelivered returns.
§ 32 ORDER CANCELLATIONS
Herbert WURLITZER reserves the right to cancel any order for an instrument placed on our website if Herbert WURLITZER determines, in its sole discretion, that the item is mispriced, damaged, already sold, or otherwise unavailable. If Herbert WURLITZER cancels an order, Herbert WURLITZER will send you an email confirmation of the cancellation and you will not be charged for your order.
§ 33 COMPLAINTS PROCEDURE
The EU Commission provides an online platform for online settlements (OS platform). It can be accessed at http://ec.europa.eu/consumers/odr/.
§ 34 FINAL PROVISIONS
34.1 Deviating business terms and conditions of customer shall not form part of the contract even if Herbert WURLITZER does not expressly dispute their validity.
34.2 Customer may only offset against claims of Herbert WURLITZER or assert a right of retention if its counterclaim is undisputed, a legal title exists or the counterclaim is synallagmatical in proportion to the respective claim in question.
34.3 The law of the Federal Republic of Germany applies under the exclusion of the UN Convention on Contracts for the International Sale of Goods. This does not apply for Consumers with regard to such mandatory consumer rights, which – according to the law applicable if this clause would not exists (which is in general the law of Consumer’s primary residence) – are legally compulsory and cannot be waived by parties agreement.
34.4 Exclusive venue for any and all disputes with regard to this contract is Berlin, provided the parties of the contract are merchants or Customer has no place of general jurisdiction in Germany or in another member state of the European Union or its permanent or habitual residence is transferred abroad after entry into force of these Terms and Conditions or permanent or habitual residence is not known at the time the action is filed.
34.5 If individual provisions of this Terms and Conditions are or become ineffective and/or contradict legal provisions, the effectiveness of the remaining Terms and Conditions shall not be affected thereby.
34.6 All notices given by you to us must be given in writing to the address set out in the imprint of the website. We may give notice to you at either the email or postal address you provided us when contacting us.
Contacting Herbert WURLITZER:
If you have any questions about these Terms, please contact Herbert WURLITZER at email@example.com. We will respond to all inquiries