§ 1 Validity of General Terms and Conditions
Our supplies, services and offers take place exclusively on the basis of these Terms and Conditions. These shall also apply to all future business relationships, even if they are not explicitly agreed again. These Terms and Conditions are considered to be accepted at the latest upon receipt of the goods or the performance of services. We herby contradict any and all adverse confirmations of customers referring to their terms and conditions and/orconditions of purchase.
Any and all agreements made between the customer and us for the purpose of carrying out this contract must be made in writing.
Our conditions of sale and delivery shall only be valid vis-à-vis entrepreneurs in the sense of § 310, para. 1 BGB [German Civil Code].
§ 2 Offer and Conclusion of a Contract
Our offers are subject to confirmation and are unbinding. Any and all declarations of acceptance and orders need to be confirmed by us in writing or by fax to become legally effective.
Our employees are not authorised to make any oral collateral agreements or oral confirmations which go beyond the content of the written contract.
The conclusion of the contract takes place under the proviso that our suppliers deliver to us correctly and in time. This shall only apply in the event that the failed delivery is not our responsibility, in particular, in the event that a congruent covering operation is concluded with our supplier. The customer will be immediately informed that the performance is not available. The counter-performance will be immediately reimbursed.
Any and all drawings, illustrations, measures, weights or other performance data shall only be binding if they are explicitly agreed in writing.
We reserve the property and copy right for any and all illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are identified as "confidential". The customer needs our explicit written consent to pass them on to third parties.
§ 3 Prices and Terms of Payment
Insofar as not otherwise indicated, the prices included in our offers are binding for us for 30 days following the date of the offer. Otherwise, the prices mentioned in our confirmation of order, plus the respective legal sales tax, shall be relevant. Additional supplies and performances are charged additionally.
Insofar as not otherwise stated in our confirmation of order, our prices are "ex warehouse" excluding packing which will be charged separately.
We reserve the right to modify our prices accordingly, if cost reductions or increases take place following the conclusion of the contract, in particular, due to wage settlements and changes in materials prices. We will provide proof of such at the customer's request.
The reduction of cash discounts must be separately agreed in writing.
The legal provisions shall apply with respect to any delay in payment.
We are authorised to use payments to clear older debts, even if otherwise stated in the customer's Terms and Conditions. We will inform the customer about the kind of set-off. In the event that costs and interest had already been incurred, we shall be entitled to set-off the payment, first with the costs, then with the interest and finally with the principal performance.
The customer shall only have the right to set-off, if the counterclaims have become final, are uncontested or acknowledged by us. Furthermore, the customer is entitled to exercise a right of retention, insofar as the counterclaim is based on the same contractual relationship.
§ 4 Period of Delivery and Performance
Dates and periods of delivery, which can be agreed bindingly or unbindingly, must be agreed in writing.
We shall not be responsible - even in the case of bindingly agreed periods and dates - for delays in delivery and performance, if these delays are due to Force Majeure or due to events which not only temporarily essentially complicate or make impossible the delivery (including, in particular, strikes, lock-outs, governmental orders etc.), even if they affect our suppliers or their sub-suppliers. In this event, we shall be entitled to postpone the delivery and/or the performance by the period of the complication plus an appropriate restarting time, or to resign the contract in full or in part with respect to the part not yet fulfilled.
If the complication lasts more than three months, following the setting of an appropriate additional period of time, the customer shall be entitled to resign that part of the contract which has not been fulfilled. In the event that the period of delivery or performance is extended or in the event we are released from our obligations, the customer shall not be entitled to any claim for damages. We can only refer to the abovementioned circumstances, if we immediately inform the customer.
Insofar as we are responsible for the non-compliance of bindingly agreed dates and periods or if we are in delay, the customer shall be entitled to a compensation for delay amounting to a half percent for every completed week of the delay, in total however, a maximum of five percent of the invoice value of the supplies and performances affected by the delay. Any and all further claims shall be excluded, unless the delay is caused by our gross negligence.
We are entitled to carry out partial deliveries and partial performances at any time, unless the partial delivery or partial performance is not of interest for the customer.
The compliance of our delivery and performance obligations is based on the due and in time compliance of the customer's duties.
In the event that the customer is in delay of acceptance, we shall be entitled to claim the damage occurred. Upon the beginning of the delay in acceptance, the risk of accidental deterioration or accidental loss passes to the customer.
§ 5 Passing of Risk
The risk passes to the customer, as soon as the delivery has been handed over to the person carrying out the transport or has left our warehouse for delivery. In the event that the delivery is delayed upon the customer's request, the risk shall pass to the customer when the notice is given that the goods are ready for delivery.
§ 6 Liability for Defects
Claims of the customer based on defects require that the customer has duly fulfilled his/her duty to examine and to make a complaint in respect of a defect immediately on receipt of the goods due to § 377 HGB [Commercial Code].
In the event that a defect is given we shall be entitled to choose a posterior fulfilment either in the form of a correction of faults or in the form of a delivery of a new faultless good. In the event of a correction of fault, we are obliged to bear all expenditure necessary for the removal of the defect, in particular, transport, travel, labour and materials costs, insofar as those are not increased because the good was transported to a place other than the place of performance.
In the event that the posterior fulfilment fails, the customer is entitled to either choose to resign the contract or to request a reduction in purchase price.
We are liable in accordance with the legal provisions, insofar as the customer asserts a claim for damage which is based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents. Insofar as we are not charged with intentional infringement of the contract, the liability for damage is restricted to the foreseeable damage which typically occurs.
We shall be liable in accordance with the legal provisions, if we culpably violate an essential contractual obligation, in such a case however, the liability shall be limited to the foreseeable damage which typically occurs.
The liability due to culpable injury of life, body or health shall remain unaffected. This shall also apply to the mandatory liability in accordance with the Product Liability Law.
Insofar as not otherwise agreed in the foregoing, any and all liability shall be excluded.
The period of limitation with respect to claims based on defects amounts to 12 months, starting from the date of the passing of risk. The period of limitation for batteries with respect to claims based on defects amounts to 6 months, starting from the date fo the passing of risk.
The period of limitation in the event of a delivery recourse in accordance with §§ 478, 479 BGB [German Civil Code] shall remain unaffected; it amounts to five years, starting with the delivery of the defective good.
Generally, only those properties are considered to be agreed as quality of the goods which are mentioned in the technical product description. Public statements, recommendations or advertising of the manufacturer are not considered contractual qualities of the goods.
In the event that the customer is provided with a defective assembly instruction, we shall only be obliged to deliver a faultless assembly instruction. And this only in the case, that the defective assembly instruction prevents the orderly assembly.
§ 7 Overall Liability
Any further liability for damages other than those provided for in § 6 shall be excluded - regardless of the legal nature of the asserted claim. This shall, in particular, apply to claims for damage resulting from culpa in contrahendo, due to other breaches of obligations or due to claims in tort for the compensation of property damage in accordance with § 823 BGB [German Civil Code].
The limitation of customer's claims pursuant to para.(1) shall also apply, if the customer does not require damages but performance, and instead said performance asserts useless expenditure.
Insofar as the liability for damages vis-à-vis us is excluded or limited, this shall also apply with respect to the personal liability for damage of our employees, members of staff, co-operators, representatives and vicarious agents.
§ 8 Reservation of Title
We reserve the title to the goods until all payments resulting from the business relationship with the customer have been received. If the customer breaches the contract, in particular, in the event of delay of payment, we shall be entitled to take the goods back. If we take back the goods, this shall be considered as a withdrawal from the contract. After we have taken back the goods we shall be authorised to utilise them. The utilisation revenues must then be set-off with the customer's liabilities, less appropriate utilisation costs.
The customer undertakes to treat the goods carefully. In particular, the customer shall be obliged to sufficiently insure the goods at their new value and at the customer's own expense against fire and water damage and theft. Insofar as maintenance and inspection work is necessary, the customer must carry out that work at the customer's own expense and in time.
In the event of a seizure of property or other interventions of third parties, the customer must immediately inform us in writing so that we can take legal action pursuant to § 771 ZPO [Civil Code of Procedure]. Insofar as the third party is not in a condition to reimburse us the judicial and extra-judicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the incurred loss.
The customer shall be entitled to resell the goods in an orderly business procedure, however, the customer already now assigns to us all claims, amounting to the final invoice amount (including VAT) of our claim, which accrue for the customer from the resale vis-à-vis the purchaser or third parties, regardless of whether the goods were resold with or without further processing. The customer shall remain entitled to collect this claim also following the assignment. Our right to collect the claim ourselves shall remain unaffected. However, we undertake to refrain from collecting the claim as long as the customer meets the payment obligations from the collected revenues, is not in delay of payment or, in particular, has not filed an application to open composition or insolvency proceedings, or cessation of payments is given. However, if this is the case, we can require that the customer informs us about the assigned claims and the respective debtors, provides all information necessary for the collection, hands over the necessary documents and informs the debtor (third party) about the assignment.
Any and all processing and reorganisation of the goods by thy customer shall always be considered to be carried out for us. In the event that the goods are processed together with objects which are not owned by us, we acquire the co-ownership in the new object in relation of the value of the goods (final invoice amount, including VAT) to the other processed objects at the time of processing. With respect to the object arising through the processing, the same shall apply as to goods which were delivered conditionally.
In the event that the goods are inseparably combined with other objects which are not owned by us, we acquire the co-ownership in the new object in relation of the value of the goods (final invoice amount, including VAT) to the other combined objects at the time of combining. In the event that the combining of the goods is carried out in such a way that the customer's object becomes the principal object, it is considered to be agreed that the customer assigns the proportional co-ownership to us. The customer holds the resulting sole ownership or co-ownership in safe custody for us.
The customer shall also assign to us the claims for securing our claims against the customer which accrue vis-à-vis a third party by connecting the goods with real property.
We undertake to release the securities we are entitled to upon request of the customer insofar as the value which can be realised from our securities exceeds the claims to be secured by more than 10 %. The selection of the securities to be released shall be in our responsibility.
§ 9 Construction Modifications
We reserve the right to modify the construction at any time, however, we are not obliged to carry out such modifications to products already delivered.
§ 10 Confidentiality
If not otherwise explicitly agreed, any and all information provided to us in connection with orders shall not be considered as confidential.
§ 11 Applicable Law, Jurisdiction and Partial Invalidity
The laws of the Federal Republic of Germany shall apply to these business relationships and any and all legal relationships between the customer and us. The provisions of the UN Purchase Law shall not apply.
Insofar as the customer is a businessperson, a legal person, a public law entity or a special fund under pubic law, our commercial residence shall be the exclusive jurisdiction for any and all disputes arising directly or indirectly from this contractual relationship.
In the event that any provision of these Terms and Conditions or a provision within other agreements is or becomes invalid, this shall not affect the validity of the other provisions or agreements.
As per March, 16th 2009
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