Business Conditions

The present terms of business (in the following "AGB") contain the exclusively valid conditions for the acquisition of sound carriers as well as the download of pieces of music and ringing tones (in the following summarised "pieces of music") using the internet site www.diva-agata.com, between you (in the following "customer") and us, the company LADIVA Musikverlag & Records GmbH, Würmtalstrasse 48, 81375 München, represented by the manager Mrs. Agata Bonafé and Mr. Alexander Bichl, (in the following "LADIVA Musikverlag und Records GmbH"), as far as these are not changed by individual written arrangements between the contracting parties.

With the order the customer accepts the validity of these AGB's. Any terms of business of the customer do not become a contract component, even if LADIVA Musikverlag and Records GmbH has not contradicted these expressly.

The customer will be informed about changes of these AGB's in a written form by fax or by e-mail. If the customer does not contradict to these changes within four weeks after the communication, the changes are approved. The customer will be pointed out separately to the contradiction right and the legal results of the silence in case of the change of these AGB's.

The presentation of the sound carriers and pieces of music by LADIVA Music & Records doesn't represent any obliging offer of LADIVA Musikverlag & Records GmbH. Only ordering sound carriers and/or pieces of music at a valid price using the order form or by sending an order for pieces of music which have been put in the articles basket is a obliging offer in sense of §145 Civil Code. In case of the acceptance of this offer LADIVA Musikverlag and Records GmbH dispatches a confirmation of the order to the customer by e-mail. Herewith the purchase contract between the customer and LADIVA Musikverlag and Records GmbH has become valid.

The customer can recognise any input errors of the order at the final confirmation before the cash and correct these any time using the delete and change function before finally sending the order.

At the time of the order always the prices shown on www.diva-agata.com are decisive. These prices does not include online costs which could result with the respective internet-service provider in particular for download times.

The purchase-price immediately becomes due with the order. All prices are including the current valid legal sales tax. It is the customer's choice to pay by cash on delivery, precash by transfer or ClickandBuy. The forwarding expenses are expelled after choice of the desired kind of payment by the customer on the order form. LADIVA Musikverlag & Records GmbH reminds expressly if the customer chooses ClickandBuy for payment, the actual general terms of business of the company Firstgate AG will become valid.

LADIVA Musikverlag & Records GmbH delivers the sound carriers in accordance with the agreements with the customer. Accruing forewarding expenses are shown separately on the bill. LADIVA Musikverlag & Records GmbH  reminds that in case of delivering abroad higher shipping-costs, customs and fees are possible. Delivery-dates and times of delivery are only obliging if they were confirmed by LADIVA Musikverlag & Records GmbH in a written form.

The transmission of pieces of music takes place through the transmission of a link over which the customer can start the download of the ordered piece of music. License-delivery by Digitally Rights Management.

LADIVA Musikverlag and Records GmbH points out that all pieces of music which are stored on sound carriers or can be covered within the scope of a download by the customer are protected by copyright. In case of doubt all intellectual property rights as well as the copyright remain with the originator.

With the download of pieces of music from the internet site www.diva-agata.com LADIVA Musikverlag and Records GmbH give to the customer the timewise and spatially unrestricted right to use the respective piece of music for personal use in a certain volume. By the download of the piece of music the customer is entitled to burn the piece of music 3 times, as well as to copy it e.g. on Mp3 player or on external data carriers 5 times, or to play it on PC's without restrictions.

It is not allowed to the customer to transfer the rights of use acquired by the download on third parties and/or to change music titles in any way and/or to circulate them. The customer is in particular not entitled to make available or accessable pieces of music on the internet or other electronic networks, for example, exchange organizations. Every use or utilization of the pieces of music for commercial purposes (e.g., for advertisement) is prohibited.

With the acquisition of the sound carrier LADIVA Musikverlag and Records GmbH puts away the property of the sound carrier to the customer. The renting, the performance and unauthorised broadcasting of the sound carrier is not permitted. A duplication of the acquired sound carrier for private or other use is allowable only within the sense of § 53 of UrhG, which means the customer has the right to pass on these sound carriers gratuitously to his personal friends and relatives for private use only. Any use or utilization of the sound carrier as well as the pieces of music stored on it for commercial purposes as well as the presentation and provision of the pieces of music stored on the sound carrier in the internet or other electronic networks, for example, exchange companies, is prohibited.

The grant of other rights of use towards the customer always needs a separate explicit and written agreement.

The legal grant occurs in case of the download with its end, nevertheless, it stands under the reservation of the entire purchase price payment.

All brands and name rights of LADIVA Musikverlag and Records GmbH as well as rights for photos, graphics, texting, logos, emblems, videos or creations of the sound carrier cover are not object of the legal grant towards the customer.

The Originator Mrs. Agata Bonafé Mongioví has acquired from airbus SAS rights to use the brand "A380" as well as the "airbus pictures" in connection with the piece of music "Near to the sky". It is expressly pointed out that no rights neither in this brand are put away by the contractual relationship with the customer nor in the brands a) "Diva Agata" and b) "LADIVA Musikverlag & Records GmbH" and c) "Near to the sky".

Technical conditions for the acquisition of sound carriers and/or download of pieces of music are:

• a PC with Microsoft Windows operating system (minimum Windows 98)
• Internet Explorer (up from version 5.5)

For playing and copying the pieces of music the Windows Media Player is necessary. For the use of the burners functionality Windows Media Player from version 9.0. is necessary.

The client, provided he is consumer, has the right to cancel his directed declaration of intention on the contracting. The term is one month. It begins earliest with preservation of this cancellation rights instruction. Provided that the consumer receives this instruction in written form, the cancellation term amounts deviating from the preceding regulation two weeks after reception. For the term protection the sending of the cancellation explanation in time is sufficient. It needs no reasons and has to be declared written in text form (i.e. to explain by fax or e-mail) to LADIVA Musikverlag and Records GmbH, Würmtalstrasse 48,  D-81375 München. The cancellation can be directed by e-mail to   ladiva-production @ t-online.de    or to:

Fa.
LADIVA Musikverlag & Records GmbH
Würmtalstrasse 48

81375 München 

The retraction-right doesn't exist if delivered sound carriers were unsealed by the customer. The cancellation right of the customer ends prematurely if LADIVA Musikverlag and Records GmbH has begun with the execution of the achievement with the explicit approval of the customer before the end of the cancellation term or if the customer has arranged the execution of the achievement (e.g., by download of a piece of music).
If the customer exercises his cancellation right, he is obliged to return the product, provided that this is suitable (i.e. not with downloads of pieces of music). The customer has to carry the costs of the return if the delivered product and the ordered one corresponds and if the price of the thing to be sent back does not exceed an amount of 40 Euros or if the customer has not yet produced the consideration or a by contract agreed hire-purchase with a higher price of the thing at the time of the cancellation. Otherwise the return is free for the customer.

If the customer is a consumer i. s.of §13 Civil Code (BGB), he is entitled by presentation of a material defect or legal lack within the scope of the legal regulations to require subsequent performance, to withdraw from the contract, to diminish the purchase price or to assert damage substitute. The period of limitation amounts 24 months, calculated from delivery.

If the customer is an entrepreneur i.s.of. § 14 Civil Code (BGB) the following restrictions are valid: In case of a material defect or legal lack LADIVA Musikverlag and Records GmbH is entitled deviating from §439 Civil Code (BGB) to the lack removal or subsequent delivery according to her choice. If the customer chooses the resignation of the contract because of a material defect or legal lack, he is not entitled beside the resignation to assert damage substitute. Material and legal faults claims come under the statute of limitations within 12 months; §§377 HGB following remain untouched.

The claims from material liability for defects and legal liability for defects are entitled only to the customer as an immediate contracting partner of LADIVA Musikverlag and Records GmbH and are not transferable.

We stick for others than by injury of life, body and health originating damages merely, as far as these are based on intentional or roughly careless action or on culpable injury of an essential contract duty (so-called "cardinal's duty", i.e. such an obligation whose fulfilment the proper realisation of the contract trusts generally only allowed and on their observance of the contracting partners regularly and may trust) by us or our fulfilment-assistants.

A further liability on compensation is excluded . In particular the substitute of the escaped profit as well as other property damages is as excluded by the customer as the substitute of the damages which have not been originated in the purchase matter themselves. The regulations of the product liability law remain untouched from this; in addition, unrestrictedly the liability for the cunning concealment of a lack, for an expressly guaranteed condition as well as for personal damages remains.

Provided that LADIVA Musikverlag and Records GmbH injures slightly negligently an essential contract duty, the obligation to indemnify is limited for damages to property to the typically predictable damage.

LADIVA Musikverlag and Records GmbH does not stick for the loss of data if the damage had not occured by proper data protection in the area of responsibility of the customer. A proper data protection is when the customer protects his data supplies at least daily in machine-readable form as can be proved and guarantees with the fact that these data with defensible expenditure can be restored. The liability of the LADIVA Musikverlag and Records GmbH  for the loss of data is limited to the typical restoration expenditure which would have occured by proper data protection.

The contents of the sites of LADIVA Musikverlag & Records GmbH were provided with biggest care. Nevertheless, there is no guarantee for correctness, completeness and actuality of the contents.

Provided that links to other web pages or sources are provided, LADIVA Musikverlag and Records GmbH is not responsible for the availability of such external sites or sources. LADIVA Musikverlag and Records GmbH does not dedicate contents which are accessible on such web pages or sources to herself and excludes every liability or guarantee in relation to this, as far as no positive knowledge of the illegality of the contents exists.

The product remains the property of LADIVA Musikverlag and Records GmbH up to entire payment.

If the customer gets longer than 10 days in delay with the payment, LADIVA Musikverlag and Records GmbH  has the right to withdraw from the contract and to claim back the product.

In case of delivery of sound carriers the danger of accidental setting and the accidental deterioration passes over to the customer when delivering the products to the transportation company or to the person being resposible for shipping. In case of the order of a piece of music by download the danger passes over from LADIVA Musikverlag and Records GmbH to the customer under delivery of the licence of Digital Rights Management.

The customer is obliged to inform LADIVA Musikverlag and Records GmbH immediately if the download was carried out incompletely or faultily.

The customer is obliged with the registration and/or with the input of his data in the order form to input truly the necessary data completely. As far as the customer uses the achievements of the LADIVA Musikverlag and Records GmbH using of a password the customer has to protect this securely and has to ensure that no others or third parties may use this password.

Provided that the customer offends against essential regulations of these Terms and Conditions (AGB), in particular against the rights of use regulated in §5, LADIVA Musikverlag and Records GmbH  is entitled to exclude the customer from the possibility of further ordering sound carriers and/or download of pieces of music with immediate effect.

The personal data informed by the customer (name, address, e-mail address, telephone number, fax number, date of birth, etc.) uses LADIVA Musikverlag and Records GmbH  according to the legal regulations of the data protection right, in particular those of the TDDSG.

The personal data informed by the customer, as far as these are necessary for justifying, content arrangement or change of the contractual relationship (continuance data), are used exclusively for the handling of the concluded contracts between the customer and LADIVA Musikverlag and Records GmbH, possibly for the delivery of sound carriers to the address given by the customer. Any use exceeding the continuance data for purposes of advertisement, market research or various different creations of our offers needs the explicit approval of the customer. The customer has the possibility to give this approval in written form by fax or by e-mail. An approval explanation is absolutely voluntarily and can be revoked by the customer any time.

LADIVA Musikverlag and Records GmbH will not pass personal data without explicit consent to third parties. This is not valid, as far as LADIVA Musikverlag and Records GmbH is obliged legally to the publication of data (e.g., according to §3,2 TDDSG).

The servers of LADIVA Musikverlag and Records GmbH are protected according to the level of present technology. Nevertheless, the customer has to be aware that still the danger exists that transmitted data can be monitored during transforming. Hence, the confidentiality of transmitted data within the scope of the use of the services or during the order process cannot be guaranteed.

These Terms and Conditions (AGB) are exclusively subject to German right excluding the UN-purchase right (CSIG), no matter from which state the order comes. Provided the customer is a consumer, nevertheless, compelling regulations of the state in which the customer has his seat or usual place of residence remain untouched.

Provided the customer is an entrepreneur, businessman or special property under public law, exclusive legal venue for all disputes from the contractual relationship with the customer is the respective place of business of LADIVA Musikverlag and Records GmbH.

Individual divergences and/or supplements of the regulations of these Terms and Conditions (AGB) need written form. The right of LADIVA Musikverlag and Records GmbH for sole-sided change of these Terms and Conditions (AGB) according to §1, 3 remains untouched from this.

Should any regulation of this contract is or becomes ineffective, the validity of the rest of the contract is not touched. Instead of the ineffective regulation a regulation should become effective which comes as close as possible to what the parties wanted taking into account economic points of view. The corresponding is valid as well for gaps in regulations.