Terms and Conditions

General Terms and Conditions of Business of FIRECREST Music

Section 1 – Area of Application and Provider

(1) These General Terms and Conditions of Business are applicable to all orders/licensing arranged by you via the Online Shop of FIRECREST Music (www.firecrest-music.com), Dahlhauserstr. 12, 53797 Lohmar, represented by Jens Christian Silz (hereinafter also referred to as “FIRECREST”).
Service Hotline Tel: +49 163 4507526, email: info@firecrest-music.com
(2) You are responsible for the correct indication of your personal data. If the customer has not yet reached the age of 18, ordering of the goods requires the consent of the parent or guardian.
(3) Our deliveries, services and offers are provided exclusively on the basis of these General Terms and Conditions of Business. The General Terms and Conditions of Business are applicable to all business relationships between us and the customer in the version applicable at the time of conclusion of the respective contract. Terms and conditions of the customer (who is an entrepreneur) that deviate from or conflict with our Terms and Conditions of Business, will not be recognised, unless we have consented to them in writing in a particular case.
(4) The languages of contract are exclusively German and English.
(5) You can call up and print out the currently applicable General Terms and Conditions of Business from the website www.firecrest-music.com under GTC/Licenses/Prices. You will also receive the General Terms and Conditions of Business with the email confirmation of your order.

Section 2 – Ordering process and conclusion of contract, availability and passing of risk

(1) In the first step of the order you can log on in the top right hand side of the page via the character, by entering your email address and the password selected in previous orders. Your stated name will then appear and you can access the account created by you. Alternatively, register directly or later during the ordering process.
(2) The music licenses presented in the Firecrest Online Shop do not constitute a binding application for conclusion of a contract of purchase. Rather, this is a non-binding request to order music licenses in the Online Shop. The main features of the respective music under the heading “Goods catalogue” can be found with the goods themselves. You can gladly ask us further questions concerning the goods via the button designed as a question mark. Our offer of goods is without engagement and non-binding.
(3) You can listen to the music in full length at any time in the Online Shop. As soon as you have chosen a product you must select a license type to fit your intended use. You can then add the chosen license to the shopping basket by clicking on the button “Add to shopping basket”. Clicking on the shopping basket opens an overview with the goods contained in your shopping basket. You can initiate the order process by clicking on the button “Go to checkout”. You will be guided step-by-step through the order process, consisting of personal data, payment form, confirmation. If you have not already registered you can do this during the order process. Compulsory information in the order process is always marked as such.
(4) Finally, you are again shown an overview of the order with the possibility of making corrections. Before sending your order, you are required to confirm that you have noted and accept our General Terms and Conditions of Business, the Instructions Concerning the Right of Cancellation as well as our Data Protection Regulations. By clicking on the button “Order and commit to payment” you issue a binding offer of purchase (Section 145 BGB (German Civil Code)).
(5) You will be provided with the download after completing the order process. The contract will not come about until upon provision of the link in the context of the confirmation of receipt of order on the website.
(6) Upon provision of the link, the risk of successful completion of the download procedure, including the risk of loss, shall pass to you. Music already purchased is at your disposal under your user account, provided the content of the license permits this. Please download the file immediately following purchase and create a backup copy.
(7) We are constantly endeavouring to keep our musical catalogue technically available. Technical problems/interruptions can result from time to time. Please also notify us immediately should you have any problems with a download. If the purchase has been completed by means of us providing the link, but the content is not available, you can demand music of a comparable content without prejudice to your statutory claims.
(8) After sending your order, you will receive technical confirmation of receipt of the order via the website and by email. The automatic confirmation of receipt of the order on the website and by email includes a copy of your order as well as an email with our General Terms and Conditions of Business and the Instructions on the Right of Cancellation in written form. Please check the confirmation for apparent spelling mistakes and calculation errors as well as for discrepancies between order, confirmation and delivery. Kindly notify us immediately of any such inaccuracies.

Section 3 – Types of license and forms of use

FIRECREST Music offers the following license types. Use of a piece of music that is not specified in one of the said license types, requires a separate, express and written agreement. The forms of use covered by the respective license type are stated for each license type.
In the case of an Internet platform with registration and subscription function, the subscription numbers for the purpose of these General Terms and Conditions of Business shall be the number of users or subscribers registered for your site or channel. In the case of an Internet site without registration or subscription function, the access statistics of your web server shall apply as so-called viewer or click numbers. With regard to the different license types and irrespective of your evaluation procedure, at least the number of subscribers or the viewer/click number of the chosen license type must be achieved.

Private
License type Private covers the following forms of use:

  • exclusively private (non-commercial) use
  • commercial use is not permitted
  • mechanical reproduction up to 100 pieces

Education
License type Education covers the following forms of use:

  • use for a single video/audio production
  • mechanical reproduction up to 500 pieces
  • exclusively for educational institutions, pupils or students
  • no commercial use permitted

Internet S
License type Internet S covers one of the following forms of use:

  • use for an unlimited number of video/audio productions (e.g. video blog, YouTube or other video platforms, podcasts, etc.) with a maximum number of subscribers <= 10.000 or
  • use for a single video/audio production with a maximum number of viewers/clicks of <= 30.000

the following applies to both forms of use:

  • no mechanical reproduction
  • Distribution only over the Internet (e.g. website, video platforms, social networks)
  • commercial use permitted

Internet M
License type Internet M covers one of the following forms of use:

  • use for an unlimited number of video/audio productions (e.g. video blog, YouTube or other video platforms, podcasts, etc.) with a maximum number of subscribers <= 200.000 or
  • use for a single video/audio production with a maximum number of viewers/clicks of <= 600.000

the following applies to both forms of use:

  • no mechanical reproduction
  • Distribution only over the Internet (e.g. website, video platforms, social networks)
  • commercial use permitted

Internet L
License type Internet L covers one of the following forms of use:

  • use for an unlimited number of video/audio productions (e.g. video blog, YouTube or other video platforms, podcasts, etc.) with a maximum number of subscribers <= 500.000 or
  • use for a single video/audio production with a maximum number of viewers/clicks of <= 1.500.000

the following applies to both forms of use:

  • no mechanical reproduction
  • Distribution only over the Internet (e.g. website, video platforms, social networks)
  • commercial use permitted

Internet XL
License type Internet XL covers one of the following forms of use:

  • use for an unlimited number of video/audio productions (e.g. video blog, YouTube or other video platforms, podcasts, etc.)
  • no mechanical reproduction
  • Distribution only over the Internet (e.g. website, video platforms, social networks)
  • commercial use permitted

Small Business
License type Small Business covers one of the following forms of use:

  • use for a single video/audio production (e.g. image film, product video, promotional video) or
  • use as background music for a website, telephone answering queue, ambient music, computer games, apps or other software products.
  • only for companies with annual sales <= 750,000 EUR

the following applies to both forms of use:

  • Distribution via the Internet, cinema, private events, on the own business premises, by telephone or physical data carrier.
  • No distribution via radio and television
  • mechanical reproduction up to 10,000 pieces
  • commercial use permitted

Business
License type Business covers one of the following forms of use:

  • use for a single video/audio production (e.g. image film, product video, promotional video) or
  • use as background music for a website, telephone answering queue, ambient music, computer games, apps or other software products.
  • only for companies with annual sales <= 1 Mrd. EUR Umsatz pro Jahr

the following applies to both forms of use:

  • Distribution via the Internet, cinema, private events, on the own business premises, by telephone or physical data carrier.
  • No distribution via radio and television
  • Mechanical reproduction up to 50,000 pieces
  • Commercial use permitted

Broadcast
License type Broadcast covers the following forms of use:

  • Use for a single video/audio production with a maximum production budget of 1.5 million EUR
  • Noo restriction for distribution
  • Unlimited mechanical reproduction
  • Commercial use permitted

Section 4 – Rights of use

(1) FIRECREST Music is the author and sole holder of all rights of use for all works offered on this platform. The copyright and the rights of use to the works are thus not subject to protection by performing rights societies such as GEMA.
(2) FIRECREST Music hereby grants the licensee a non-exclusive right of use, unrestricted in terms of time and geographical location, to the respective work in the scope required for the agreed use. As acquiring party, you will not become the owner of the work, nor are you generally entitled to transfer rights of use to third parties or to make onward granting of rights to third parties. If you use the work yourself, you will simultaneously become licensee. If you produce the planned project, for example as production company or advertising agency, and wish to acquire the rights to the work for the project of a customer, the corresponding customer must be stated as licensee in the order form. In the latter case, own use by the acquiring party is only covered by the scope of the license to the extent that this is necessary for incorporation of the work into the project.
(3) The rights of use granted are limited. The limitations are based on the license types and forms of use regulated in Section 3. The right of use is granted solely for the form of use corresponding to the respective license type selected. For the purpose of clarification, FIRECREST Music shall remain entitled to also exploit the licensed work in another manner. As such, no exclusivity applies.
(4) The authors of the works hereby waive their right to naming, i.e. they do not need to name the authors.
(5) The granting of the rights of use in the agreed scope is subject to the condition precedent of complete payment of the license fees. As such, prior use of the work is inadmissible.
(6) Without the express, written consent of FIRECREST Music in the specific individual case, you are fundamentally not entitled to alter, edit or further process the work yourself or to have this done by third parties. This applies in particular to remixes, samples or tonal alterations that affect the personal author’s rights of the composers. You are however entitled to shorten the work for the intended use within the scope of the project as well as to combine it with third-party works, such as text, picture or film material.
(7) In the event of insufficient cover by a license, you can carry out an upgrade to a higher license. In the event of an upgrade, only the difference between the existing license and the chosen, higher license is payable.
Downgrade to a lower license is not possible. To carry out an upgrade, please contact us by email at info@firecrest-music.com or via the contact form on our Internet site.

Section 5 – Prices

The prices stated on the product pages are net prices, they contain all price constituents, with the exception of the statutory value added tax. Given the nature of the products, dispatch costs do not apply.

Section 6 – Payment terms and default

(1) The purchasing price is payable with the order.
(2) Possible forms of payment are:
credit card
Paypal or
against an invoice with a payment period of 14 days from receipt of the invoice.
Payment against an invoice is available only to commercial customers or educational institutions with an activated customer account.
(3) When paying by credit card, the purchasing price will be reserved on your credit card at the time of the order (“Authorisation”). The actual debiting of your credit card account will be on the date on which we dispatch the goods to you.
(4) If you default on a payment, you will be obliged to pay statutory default interest at a rate of five percentage points above the base rate of interest. You will be charged at least a dunning fee of 5 EUR for each dunning letter sent to you following occurrence of default, unless you can demonstrate lower damage.

Section 7 – Offsetting/right of retention

(1) You will only be entitled to a right of offsetting if your counterclaim has been established by declaratory judgment or is not disputed by us.
(2) You can only exercise a right of retention if your counterclaim is based on the same contractual relationship.

Section 8 – Delivery, invoice

(1) Unless otherwise agreed, delivery of the goods shall be through the provision of a link by email. This can be activated by you via a click, and starts the download to the storage medium chosen by you.
Subsequently, all goods purchased can again be downloaded via the “Downloads” heading within your customer account.
(2) The goods are offered for download exclusively in the file formats WAV and MP3.
(3) The customer is responsible for having suitable software available that enables correct opening, editing and/or printout of the files and content.
(4) You will receive a detailed invoice showing the value added tax with each delivery of goods or following each download. This invoice also applies as proof of purchase and should therefore be kept carefully.

Section 9 – Instructions Concerning the Right of Cancellation

Right of cancellation

You have the right to cancel the present contract without stating reasons within a period of 14 days from the date on which you, or a third party appointed by you who is not a carrier, has taken possession of the goods (or of the last goods, partial delivery or piece in the event of a contract for several goods under a uniform order, or for delivery of goods in several partial deliveries or pieces), or from the date of conclusion of the contract in cases of digital content that is not delivered on a physical data carrier (e.g. CDs or DVDs). To exercise your right of cancellation you must inform us:

FIRECREST Music
Dahlhauserstr. 12
53797 Lohmar
represented by Jens Christian Silz
info@firecrest-music.com
of your decision to cancel the present contract. You can contact us or use the following specimen cancellation form . For the purpose of complying with the cancellation deadline, it is sufficient if you send the notification concerning exercising of the right of cancellation prior to expiry of the cancellation deadline, and return the goods within the period defined below.

Please contact us for any additional information on the scope and content, and for any explanations concerning exercising.

Consequences of cancellation.

If you cancel the present contract, we shall refund all payments received from you for the goods acquired, and we shall also reimburse you for the costs of the most economical standard delivery offered by us. This refund will be made immediately and, subject to the situations stated below, at the latest within fourteen days of the date on which we receive notification of your cancellation of the present contract. We shall use the same means of payment for this refund as used by you for the original transaction, unless an express agreement to the contrary has been made with you. Under no circumstances shall we charge you fees for the refund. We can refuse the refund until we have received the goods back or until such time as you provide evidence that you have returned the goods – whichever is the earlier.
You must return the goods immediately and in all cases at the latest within fourteen days of the date on which you inform us of cancellation of the present contract. The deadline shall be considered adhered to if you dispatch the goods before expiry of the fourteen-day period. You are required to bear the normal costs of return if the goods delivered conform to those ordered and if the price of the item to be returned does not exceed 40 euros, or if, given a higher price of the item, you have not yet provided the counter-performance or any contractually agreed partial payment at the time of cancellation. In other cases, the return shall be free of charge for you. Items not capable of dispatch by parcel will be collected from you. You will only be required to assume responsibility for any loss of value of the goods, if this loss of value is attributable to conduct towards you that is not necessary for checking the quality, features and function of the goods.

Exemptions from the right of cancellation

The right of cancellation shall not apply or shall lapse in the case of the following contracts: with deliveries of digital content (including downloads) not delivered on a physical data carrier (e.g. CD), if you have expressly consented to the start of execution prior to the order, and have simultaneously confirmed that we can begin execution and that you will lose your right of cancellation as soon as execution has begun.

Specimen cancellation form

If you wish to cancel the contract, please complete this form and return it to us.
To
Company:
Address:
Email:
Fax:
I/we (*) hereby cancel the contract, concluded by me/us (*) for the purchase of the following goods (*):
Ordered on (*)/received on (*):
Name of the consumer(s):
Address of the consumer(s):
Signature of the consumer(s) (only when notifying in paper format):
Date:
(*) please delete as applicable.

End of the instructions on the right of cancellation

Section 10 – Defect rights

(1) In the absence of any express agreement to the contrary, your warranty claims shall be based on the statutory provisions of the law on the sale of goods (Sections 433 et seq. BGB).
(2) If the goods delivered contain defects, customers who are consumers can choose between demanding removal of the defect (repair) or replacement delivery. If the repair or replacement delivery fails, the customer shall be entitled, at its discretion, to demand a reduction in the selling price or to withdraw from the contract. If the customer is an entrepreneur, we reserve the right to choose the option of subsequent fulfilment given the presence of a defect.
(3) Customers who are entrepreneurs undertake to notify us of this defect in writing immediately following receipt of the goods – at the latest however 5 days following examination or receipt. If the defect is a hidden defect that was not recognisable at the time of delivery, the written notification by the entrepreneur must be made immediately following detection – at the latest however within 5 days of detection.
(4) The warranty period for customers that are consumers is 2 years from receipt of the goods, for entrepreneurs 1 year from receipt of the goods.

Section 11 – Liability

1. Our liability for damages is limited to intentional conduct and gross negligence irrespective of the legal grounds. This shall not apply to damage resulting from injury to life, limb or health, caused by intentional or negligent violation of obligations on our part, or to claims under the Product Liability Law. The limitations of liability shall likewise not apply to other damage based on intentional or grossly negligent violation of obligations, or on conduct by us that culpably violates the essential contractual obligations. In the latter case however, liability shall be limited to the damage typically foreseeable at the time of conclusion of the contract. We are also liable for our legal representatives and vicarious agents.
2. If liability for damage, not based on injury to the life, limb or health of the customer, is not excluded in cases of slight negligence, these claims shall become statute barred one year after creation of the claim.
Section 12 – Data protection
1. The treatment of the data provided will be in accordance with the statutory provisions. Further details can be found on the cover page under the heading: “Data protection” or directly under the link www.firecrest-music.com/data-protection?lang=en
2. Each customer is entitled to request information at any time on its data stored by us, and to have this deleted if applicable. In this respect, the Firecrest Online Shop is at the disposal of the customer at info@firecrest-music.com.

Section 13 – Miscellaneous/concluding provisions

1. The customer is obliged to inform us immediately of any change of address. Until such time as the customer can demonstrate having sent such notification, the previously known address shall continue to apply as the customer’s valid address.
2. Subsidiary agreements, amendments and supplements in business dealings require the written form. This shall also apply to amendment of the requirement of the written form itself.
3. The law of the Federal Republic of Germany shall apply, without the reference norms of Private International Law and subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods – the latter if the customer is an entrepreneur. The choice-of-law clause shall be ineffective if special consumer regulations in the home country of the customer (who is a consumer) are more favourable.
4. If an agreement on place of jurisdiction is permissible exclusively in business dealings, the place of jurisdiction shall be the respective current registered office of FIRECREST. Place of performance is likewise the current registered office of FIRECREST. This shall not apply to our customers who are consumers. In this case, the place of performance shall be the customer’s place of residence or the delivery location nominated by the customer.
5. Should individual provisions of these General Terms and Conditions of Business be or become ineffective, the legal validity of the other provisions shall not be affected in business dealings. The same shall apply as regards any loopholes in the contract.

FIRECREST, Lohmar, July 2018