Bitwig GmbH is a limited liability company [Kapitalgesellschaft] operating in the business area of developing and trading in music software.
Section 1. Scope and General Provisions
1. For deliveries and services by Bitwig GmbH (“Bitwig”) using the web shop these General Terms and Conditions of Business (“T&C”) apply exclusively in the version valid on the date the contract is entered into.
2. The inclusion of the T&C of Bitwig customers is expressly rejected and this rejection does not need to be repeated after receipt of corresponding conditions by Bitwig or a corresponding reference by the customer to its own T&C. They are not even a part of the content of the contract if we carry out delivery or service without reservation in the knowledge of their existence. Bitwig’s terms are deemed accepted by the customer at the latest on acceptance of the Bitwig’s goods or services, even if the customer’s intervention condition exclude this. Confirmation to the contrary by the customer referring to its terms and conditions of business and ownership is herewith rejected.
3. Telephone and oral arrangements are only binding if they are confirmed in writing (for this text form - for example email - is sufficient). The sales staff are in particular not authorised to make oral subsidiary agreements going beyond the content of the written contract.
4. Reference to standards and explanations on the website or in sales brochures or even product descriptions are to be regarded exclusively as a description of the quality and not as a warranty of quality or service life. Statements on the goods/services to be provided are only warranties, warranties of quality or service life in the legal sense if they are made in writing by Bitwig management and are expressly and literally marked as “warranty, warranty of quality or service life”.
5. Illustrations, dimension and weight details in the web shop, catalogues and in other Bitwig publications only represent approximate non-binding information. A guarantee for the correctness is not assumed.
6. Bitwig reserves the right to the ownership, copyright, patent and other commercial industrial trade rights to any offers, cost calculations, samples, technical drawings and other documents that Bitwig may provide to customers. They are to be returned to Bitwig at any time on request and may not be copied, reproduced or disclosed to third parties without the express written consent of Bitwig.
Section 2. Content of the Contract
1. Bitwig is responsible for the manufacture, trade or loan of software, hardware and other accessories via the web shop in accordance with the provisions of these T&C. Supply and delivery is carried out for this on the basis of a specific purchase order by the customer. However a purchase contract does not come into being until acceptance of the purchase order by Bitwig is confirmed.
2. Only the order confirmation is authoritative for the content of the purchase contract. Agreements and supplements to the purchase contract entered into require to be confirmed in the form of the purchase contract entered into by Bitwig.
3. The delivery of the goods is carried out with retention of title as provided for in section 449 German Civil Code with the extensions below (section 5 Retention of Title).
Section 3. Right of Cancellation
1. Right of cancellation
As a consumer you may cancel your declaration of agreement within 14 days in any form (e.g. by letter, fax, email) without giving reasons or – if the item has been transferred to you before the expiry of the time-limit – also by returning the item.
The period commences after receipt of this notice in text form but not before receipt of the goods by the recipient (in the case of recurring delivery of the same type of goods not before receipt of the first partial delivery) and also not before fulfilment of our obligations to inform under article 246 section 2 in conjunction with section 1 subs. 1 and 2 EGBGB [Introductory Act to the German Civil Code] as well as our obligations under section 312g subs. 1 clause 1 German Civil Code in conjunction with article 246 section 3 EGBGB. To comply with the time limit, it is sufficient that the cancellation or return of the goods be dispatched in good time.
Cancellation by returning the goods must be sent to the following address:
Schwedter Str. 13
2. Consequences of cancellation:
If the cancellation is effective, any services received by either side are to be returned and any relevant benefits (e.g. interest) relinquished. If you are unable to reimburse the service and benefits received (e.g. use and enjoyment) to us in their entirety or partially or where you can only return them in a deteriorated state, you must offer compensation in this respect if required. This may mean that you need nonetheless to meet the contractual payment obligations for the period until the cancellation. For the deterioration of the item and for benefits derived you are only required to pay compensation where the benefits or the deterioration is to be attributed to handling of the item that goes beyond checking the properties and functionality. By “checking the properties and functionality” is meant testing and trying out the goods in question such as is possible and usual in the retail store.
Items that can be sent by parcel post are to be returned at our risk. You must bear the ordinary costs of return if the goods supplied correspond to those ordered and if the price of the item to be returned does not exceed 40 Euros or if, in the case of a higher item price at the time of the cancellation, you have not paid the consideration or a contractually agreed partial payment. Otherwise return is free of charge for you. Items that cannot be sent by parcel post will be collected from you. Liabilities for the reimbursement of payments must be met within 30 days. The period commences for you on dispatch of the notice of cancellation, for us with receipt of it.
3. Exclusion of cancellation
The right to cancel does not exist for distance contracts for the supply of goods manufactured to customer specifications or clearly tailored for personal requirements or that because of their nature are not suitable to be returned or can quickly spoil or the expiry date of which would be exceeded, for the supply of audio or video recordings or of software if the data carriers supplied have been unsealed by the consumer or for the delivery of newspapers, periodicals and magazines.
Section 4. Scope of Services
1. The prices contain the statutory VAT. With the date of publication of the prices in the web shop the previous prices lose their validity.
2. Shipping is carried out at the risk of the purchaser. As a consumer the transfer of risk (risk of accidental loss and accidental deterioration of the goods sold) does not take place until hand-over to the purchaser. The shipping costs are to be borne by the buyer.
3. The purchaser must inform Bitwig in good time of any necessary additional details for the dispatch of the goods.
4. The purchaser is obliged to accept the goods without delay as soon as they are ready for acceptance but not before a date given in the order acceptance. For the download of software, provision as laid down in the previous sentence is sending the download link.
5. Bitwig will deliver the order in one consignment but is entitled to also delivery the order in partial deliveries. Bitwig will inform the purchaser about a partial delivery before delivery. Bitwig will inform the purchaser of the delivery date in the acceptance confirmation. Bitwig will only take action for delays in delivery if Bitwig is responsible for them.
6. In the event of delay in delivery the purchaser is entitled under the statutory provisions to cancel if he has not been notified that the goods were ready for shipping before the effective declaration of cancellation.
Section 5. Retention of Title, Selling-on
1. The goods remain the property of Bitwig until complete payment has been made.
2. For traders, in addition to point 1 the following applies: the goods remain the property of Bitwig until complete payment of all demands, also those arising in future including the claim for payment of the account balance of Bitwig against the customer from the business relationship. Bitwig undertakes to release securities the value of which exceeds the debt to be secured by 10%.
3. In the event of manipulation and processing – of the goods supplied under retention of title – by the purchaser the following applies. The manipulation and processing or re-forming of the purchased item by the buyer is always carried out on behalf and by order of the supplier. In that case the expectant right of the buyer to the purchased item in the re-formed item continues. If the purchased item is processed with other objects not belonging to Bitwig, Bitwig acquires co-ownership of the new item in proportion to the objective value of the purchased item to the other processed objects at the time of processing. The same applies in the event of commingling. If the commingling is such that the buyer’s item is to be regarded as the main item, it is deemed to be agreed that the buyer shall transfer co-ownership to Bitwig on a pro-rata basis and shall hold the sole ownership or co-ownership for Bitwig. For securing the claim against the buyer, the buyer shall also assign such claims to Bitwig that arise through the combination of the reserved goods with a plot of land against the third party. Bitwig accepts the assignment. The purchaser is entitle to sell goods in the normal course of business. He is prohibited from pledging or transfer by way of security. The purchaser must notify the seller without delay of pledging or any other impairment of the rights of ownership by third parties.
4. In the event of selling on – of the goods supplied under retention of title – by the purchaser the following applies. The purchaser shall assign his claims against the third party as of now as a precaution to Bitwig and this is irrespective of whether the reserved goods is sold without or after combination with another moveable item or to several customers. Bitwig shall accept the assignment. Bitwig shall not disclose the assignment. Where the goods supplied by the seller are sold by the purchaser together with other goods not belonging to Bitwig, the assignment of the purchase price claim from the resale shall only be transferred in the amount of the value of the goods supplied by Bitwig. The purchaser continues to be authorised to collect the claim. This collection authorisation is however under the reservation of revocation in the event that seller does not meet his legally binding obligations, falls into arrears with the payment, provisional insolvency proceedings are ordered and/or insolvency proceedings are opened.
5. With the complete payment of all of the supplier’s claims from the business relationship the purchaser is entitled to the assigned claims. Bitwig undertakes to release securities the value of which exceeds the debt to be secured by 10%.
6. If a delivery is as specified in the contract carried out to someone other than the purchaser, ownership of the delivery is not transferred until the purchase price has been paid by the purchaser.
Section 6. Payment
1. The goods are to be paid strictly cash before delivery. For this the customer can use various payment service providers. Furthermore the customer can pay by credit card and by invoice. Payment by invoice is only possible after agreement with Bitwig.
2. Where nothing different is stated, Bitwig’s invoices are due immediately.
3. The presentation of bills of exchange or cheques is not considered as payment.
4. When paying by bill of exchange the following points are to be observed:
a) The maturity term must not exceed 90 days from the due date of the invoice.
b) When paying by bill of exchange the bill issuer is to bear the discount charges. In the event of arrears, discount charges are charged at a minimum amount of 8 percentage points above the base lending rate of the European Central Bank.
c) Apart from the discount charges stated under b) the bill of exchange tax and for such bills of exchange that are not made payable at a credit institution, collection charges of a minimum of 1 Euro per bill of exchange will be invoiced. The non-discountable bills of exchange can only be discounted at the applicable bank interest rates for cash credits.
5. All payments received are strictly credited to the oldest due claim. Any instructions for use elsewhere can only be taken into consideration where due claims are not present on the date of receipt of the payment.
6. Where there are arrears of payment, bill of exchange protest and in the event of the customer’s suspension of payments, immediate cash payment for the whole of the goods - including any claims from circulating bills of exchange - regardless of the agreed due date is required. This also applies if Bitwig becomes aware of other circumstances which cast doubt on the creditworthiness of the customer in question unless sufficient securities are given. On the request of Bitwig the purchaser must make payment in advance for deliveries still outstanding to the extent that he is obliged to accept them.
Section 7. Warranty
1. Claims for defects lapse in accordance with the statutory regulations. According to these claims for defects lapse within 2 years.
7. For traders instead of the provision under 1. the following applies. The customer is obliged to investigate the goods immediately and with the required care for quality and quantity differences and to notify the seller of obvious defects in writing within 7 days of the receipt of the goods; to meet the deadline dispatching in time is sufficient. This also applies to hidden defects determined later after discovery. In the event of breach of the investigation and notification duty, assertion of the warranty claims is excluded.
8. If in spite of the care shown the supplied goods exhibit a defect that was already present on the date of transfer of risk, Bitwig will, subject to due complaint of defect, at the choice of XX remedy the defect or supply replacement goods. Bitwig must always be given opportunity for supplementary performance within an appropriate period. Recourse claims remain unaffected by the above provision without restrictions.
9. If the supplementary performance is unsuccessful, the buyer may - without prejudice to any claims for damages - withdraw from the contract or reduce the payment. Liabilities for defects are not considered to exist with natural wear and tear and with damage that take place after the transfer of risk as a consequence of being exposed to incorrect or negligent treatment, excessive use, unsuitable resources and to particular external influences that are not set out under the contract. Should improper changes be carried out by the buyer or by third parties then likewise no liability for defects shall exist for these and the consequences from them.
10. If the seller can only be accused of simple negligence, he is not liable for material and financial loss unless a material contractual obligation has been breached by it. For this damages are to be limited to the foreseeable typical compensation.
Section 8. Subsidiary Agreements
1. There are no further agreements.
2. German law is exclusively applicable to all contract and business relationships between Bitwig and the customer.
3. International and supranational provisions, for example the United Nations Convention on the International Sale of Goods, do not apply to the contract and business relationships between Bitwig and the purchaser.
4. Amendments or additions to this contract as well as this paragraph must be made in writing. Amendments to these clauses require likewise to be in writing. [This clause on the written form has now been classified as problematic as the individual agreement has strict precedence over the T&Cs. However this clause on the written form should be built in as there might be ignorance on the part of the possible opponent]
5. If any provision of this agreement is invalid, then this does not affect the validity of the remaining provisions of these T&Cs. Instead of the ineffective provisions a replacement stipulation which comes closest to the intended purpose of the ineffective provisions will come into effect.
6. Place of jurisdiction is the registered office of Bitwig where the purchaser is a trader, not a consumer.
v. 1.1, March 2014