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Conditions of Use
General Terms and Conditions
Elastic Dreams, Hauptstrasse 3A, 65614
§ 1 Applicability
The Allgemeine Geschäftsbedingungen in the German form shall apply exclusively. Conflicting conditions of the customer or conditions differing from those indicated in our General Terms and Conditions cannot be accepted. Individual agreements are not touched by this.
§ 2 Right of Withdrawal
The customer shall be entitled to withdraw his declaration of intention to conclude a contract within one month after receipt of the goods by returning the goods to Elastic Dreams or by a written notice by mail, E-mail or fax. The time allowed for revocation shall begin earliest with receipt of this declaration in textform and not before receipt of the goods. To comply with this term it is sufficient to dispatch the notice or the goods in time. The return adress is:
M. Knebel, authorized representative
In the case of withdrawal both parties shall refund the benefits they received including any associated advantages, e.g. interest. In the case of a considerable deterioration in the quality of the goods or in the case of loss, the customer shall make good the corresponding reduction in value or loss to Elastic Dreams if he withdraws his order. The right of withdrawal shall be barred, if the reduction in value is exlclusively dependent on an examination of the goods, like it would have been possible in a retail shop. Moreover the duty for compensation can be avoided by returning unused goods. Goods shall be returned by mail whenever applicable. If the goods were delivered according to the ordered items the charges for the return of the goods of up to EUR 40,- shall be the responsibility of the customer. If the customer has already paid the purchase price, Elastic Dreams shall be entitled to deduct the reduction in value from the amount repayable. Goods unsuitable to returns will be picked up. It is the customers duty to comply with the compensation within 30 days after the notice of withdrawal. The customers right of withdrawal will be barred earlier, if within this period Elastic Dreams has on the customers demand delivered a service, or the customer has used the service already (e.g. a download). The right of withdrawal shall also be barred, if goods were manufactured according to the customers specification or are explicitly cut for the personal use by the customer, if they are not suitable for returns because of the condition of the goods, if they are perishable or if the expiry date is exceeded. The same applies to contracts for the delivery of audio or video recordings or software if the delivered data carriers have been unsealed by the customer as well as to contracts for the delivery of newspapers and magazines.
End of Right of Withdrawal.
§ 3 Exercise risk
Elastic Dreams does not assume an exercise risk. The company is entitled to withdraw from a contract in case it does not receive the article of sale despite an existing purchase agreement.
In this case liability of the vendor regarding fraudulent intent or gross neglicence is unchanged.
Elastic Dreams will inform the customer immediately, if a good is not available in time granting him the right to withdraw and shall refund the purchase price to the customer as soon as possible.
§ 4 Payment of Purchase Price, Terms of Payment,
Shipping and Handling
All prices are inclusive VAT and exclude mailing expenses. Payment shall be made either by advance payment or by credit card. Apart from that the vendor is entitled to deliver on account in individual cases. Then § 7 applies to the terms of payment. Mailing expenses are DPD to 2 KG: 3,80 €, to 5 KG: 5,50 €, to 10 KG: 10,50 €, to 31,5 KG: 11,40 € or DHL to 2 KG: 4,20 €, to 5 KG: 5,90 €, to 10 KG: 11,80 €, to 31,5 KG: 13,80 € per order within. Additional costs for goods that have to be delivered by conveyance because of their condition will be 10,- €, in some cases that will be marked accordingly, 15,- €. The costs for the individual deliveries within or outside
§ 5 Reservation of Ownership
Until complete settlement of all claims against the customer the delivered goods shall remain the property of Elastic Dreams.
§ 6 Duty of Disclosure
It is the duty of the customer to advise any claim within 14 days after receipt of delivery in the written form. The customer shall describe any defects as detailed as possible.
§ 7 Terms of payment
The purchase price shall be due upon delivery. If the customer has not settled the account within 30 days after delivery of the goods and receipt of the invoice, he is regarded as in default of payment without further notice from Elastic Dreams. In case of deficiencies the customer is not entitled to withhold the ordered items unless this is justified by the quality of deficiencies or the effort for supplementary performance would exceed the value of the item.
§ 8 Liability of the seller
(1) The seller is liable for damages or injuries to life, body and health in cases of gross negligence or damage caused intentionally by the seller or his representatives covered by the liability under the German Product Liability Act as well as for any damages resulting from a breach of contract caused wilfully or by gross negligence or fraudulent intent by legal representatives, vicarious agents or assistants. The claim for damages in case of infringement of contractual obligation is however limited to the predictable damage typically related to the contract or foreseeable, if there is not an additional cause of liability according to paragraph 1 or 2.
(2) The aforementioned provisions in passage 1 apply to all claim of damages, in particular to the claim of damage besides performance and the claim of damage instead of performance, whatever the legal ground is, in particular in cases of deficiencies, the infringement of duties or unlawful act. It also applies in case of claim of compensation for failure after unsuccessful attempt. The liability for default is defined in § 10, the liablity for impossibility in § 11.
(3) There is no change in the burden of proof to the disadvantage of the customer associated with the aforementioned provisions.
§ 9 Default
(1) If exceedance of time limits are due to force majeure, e.g. mobilization, war, strikes, riots and civil commotions, time limits will elongate accordingly.
(2) Elastic Dreams as well as its representatives, vicarious agents and assistants, are liable in case of default in service due to fraudulent intent or gross neglicence of the vendor within the limits of the law. In other cases of default of delivery the vendor’s liablity for compensation besides and instead of performance is limited to 5% of the value of the contract goods. Moreover claims in the name of the customer are barred even after exceedance of a time limit for performance that was set to the vendor. Notwithstanding the aforementioned provisions and the following restrictions on liability, Elastic Dreams shall have unlimited liability for damages or injuries to life, body and health. There is no change in the burden of proof to the disadvantage of the customer associated with the aforementioned provisions.
§ 10 Impossibility
In case delivery is impossible, the customer has the right to claim for compensation within the limits of the law. The claim for compensation besides and instead of performance and the claim for compensation for unsuccessful attempt is however limited to 5% of the value of the contract goods that cannot be used. Beyond that claims in the name of the customer due to impossibility of delivery are barred. This limit does not apply to the liability for damages or injuries to life, body and health caused intentionally or by gross negligence. The customer’s right of withdrawal from a contract remains unchanged. There is no change in the burden of proof to the disadvantage of the customer associated with the aforementioned provisions.
§ 11 Subsequent Performance
A subsequent performance shall be deemed a failure after the second unsuccessful attempt. If the subsequent performance has failed, the customer can demand compensation instead of performance. The right of the customer to claim any further damages on the following conditions shall remain unaffected.
§ 12 Partial Deliveries
Elastic Dreams shall be entitled to make partial deliveries, as far as this is reasonable.
§ 13 Set-off
The customer shall only be entitled to set-off if his counterclaims have been recognized by declaratory judgment.
§ 14 Privacy
All personal information of customers will be stored exclusively for the processing and handling of the respective order in strict observance of relevant rules and regulations, such as the German Data Protection Act.
§ 15 Legal Venue
The legal venue for all conflicts arising from the contract is exclusively the domicile of the vendor, if the customer is a general merchant. The same applies, if the customer does not have a legal venue within , has after conclusion of the contract moved his adress or usual place of residence outside of or if the usual place of residency of the customer is unknown at the point of commencement of action. Moreover the regulation within the limits of law apply.
§ 16 Applicable Law
The privity of contract is regulated under the German Law to the exclusion of the International Civil Law and the CISG (United Nations Convention on Contracts for the International Sale of Goods).
§ 17 Severability Clause
The nullity of any of the provisions herein shall affect neither the validity of the Agreement as such nor the validity of these General Terms and Conditions. An invalid or unaccomplishable provision will be replaced by the valid or accomplishable provision, that is in its effect most applicable with regard to the economic aim, which was tried to reach with the invalid or unaccomplishable provision by both contractual partners.
As at Dezember 2011.
Copyright by Elastic Dreams