General terms and conditions
the DIGIPHOT e.K.
Registry Court Amberg HRA 3267,
VAT ID No.: DE231250658
(hereinafter referred to as "Digiphot e.K.").
Phone: +49 (0)9627 - 91218
Fax: +49 (0)9627 - 91219
1. Scope of application
1.1. These General Terms and Conditions of Business (hereinafter referred to as "GTC") shall apply to all declarations of intent, contracts and legal or quasi-legal acts of Digiphot e.K. with its customers (hereinafter referred to as "Customer"). Counter-confirmations by the Customer as an entrepreneur (cf. Section 2.2.) with reference to its own terms and conditions of business and/or purchase are expressly rejected; these shall not become part of agreements unless the terms and conditions are expressly confirmed by Digiphot e.K..
1.2. If the Customer is an entrepreneur (cf. Clause 2.2), these GTC shall also apply to all future legal transactions of the parties from the time of their first inclusion. Subsequent amendments may be made in accordance with clause 18 of these GTC.
2.1. "Consumer" within the meaning of these General Terms and Conditions is any natural person who concludes the contract for purposes which can predominantly be attributed neither to his commercial nor to his independent professional activity.
2.2. "Entrepreneur" within the meaning of these GTC is any customer who, when concluding the contract, acts in the exercise of his commercial or self-employed professional activity.
2.3. "Demo goods" within the meaning of these GTC are goods that are offered marked as "demo goods" (e.g. exhibition items).
3. Conclusion of contract
3.1. The range of offers in catalogues and on the website of Digiphot e.K. is non-binding. By placing an order, the customer makes a binding offer to conclude a purchase contract. The confirmation of receipt subsequently sent by Digiphot e.K and any status reports do not constitute acceptance of the offer. Digiphot e.K. may accept the Customer's offer within 5 days, in the case of entrepreneurs as Customers (cf. Clause 2.2.) within two weeks, after receipt of the order by means of an express declaration. The contract shall be concluded upon receipt of the declaration of acceptance (order confirmation). The dispatch of the ordered goods and the confirmation of dispatch to the customer shall be equivalent to an express declaration of acceptance by Digiphot e.K.; this shall not apply if the customer has selected advance payment as the method of payment. In the case of payment in advance, the declaration of acceptance on the part of Digiphot e.K. shall be made by order confirmation and request for payment by e-mail. In all other cases in which the customer triggers a payment to Digiphot e.K. during the order process, the release of the payment process or the acceptance of the purchase price shall already constitute the binding acceptance of the purchase contract by Digiphot e.K..
3.2. The following languages are available for the conclusion of the contract: German and English. The Customer agrees that communication between Digiphot e.K. and the Customer with respect to contracts and invoices shall be in electronic form.
4.1. The countries supplied by Digiphot e.K. result from the order conclusion. In the case of orders from the EU, Digiphot e.K. will ship the ordered goods to the specified delivery address within the EU, unless otherwise agreed. Unless otherwise agreed, Digiphot e.K. shall only ship demo goods to delivery addresses within the Federal Republic of Germany.
4.2. Digiphot e.K. shall deliver an order consisting of several goods as a matter of principle in a uniform manner. In the event of partial delivery at the special request of the customer, the shipping costs pursuant to clause 5. shall be charged additionally for each partial delivery.
4.3. Digiphot e.K. participates in a disposal system within the meaning of Section 6 (3) of the German Packaging Ordinance (Verpackungsverordnung) in order to ensure that sales packaging is taken back throughout the country. The Customer as a consumer (cf. Section 2.1.) can therefore return the sales packaging to any designated collection point of the disposal system.
4.4, Customers who provide a German billing address can select the "Collection" option in the order process. If this option is selected, there will be no delivery of the goods to the customer within the meaning of sections 4.1. to 4.3. The customer will receive a pick-up ticket by e-mail indicating a date from which the goods will be available for pick-up. The customer has 10 working days from the date on which the goods are made available to collect the goods from:
Digiphot e.K Logistics Centre Egerlandstr. 6 92224 Amberg
to collect the goods. In doing so, he has to present the papers mentioned in the collection ticket at the time of collection. From the time the goods are handed over to the customer, the risk of accidental destruction, loss or accidental deterioration of the goods shall pass to the customer.
4.5. If the goods are not collected within the 10-day period in the cases of clause 4.5, the Customer shall reimburse Digiphot e.K. for the additional expenses incurred by the delayed collection, in particular the storage and maintenance costs of the goods. This does not apply if the delays are due to a circumstance for which the Customer is not responsible. In all other respects, the statutory provisions on creditor default pursuant to §§ 300 et seq. BGB (GERMAN CIVIL CODE). Digiphot e.K. shall have a right of retention to the goods due to any claims for compensation due to delayed collection of the goods.
5. Prices, shipping costs, payment
5.1. Unless otherwise agreed, the prices applicable to customers as consumers (cf. Clause 2.1.) shall be those in effect on the date of the order, and the prices applicable to customers as entrepreneurs (cf. Clause 2.2.) shall be those in effect on the date of delivery. All prices are exclusive of packaging and shipping costs, which are shown separately when the order is placed. For customers as entrepreneurs (cf. Clause 2.2.), the prices are exclusive of statutory value added tax. If the delivery is made as a cash on delivery shipment on the basis of an express individual agreement between the Customer and Digiphot e.K., the Customer shall also bear the cash on delivery and money transfer charges for each individual cash on delivery shipment, which shall also be shown separately in the order. If a delivery service is commissioned to transport the ordered goods to countries outside the EU (not possible for demo goods), additional fees and customs duties may also be incurred, which shall also be borne by the customer. If the Customer is an entrepreneur (cf. Clause 2.2.), the Customer shall also bear the insurance costs within the meaning of Clause 14.4. All current prices, costs and fees as well as the General Terms and Conditions are available in their current version at www.Digiphot e.K.de.
5.2. The customer can choose between different payment methods, which are offered depending on the order amount, the delivery method, the shipping destination and the settings in the customer account. However, there is no entitlement to a specific payment method. Unless otherwise agreed, in the case of newly established business relationships with entrepreneurs (cf. Clause 2.2.), the first three deliveries shall be made against advance payment or payment on delivery. The various payment options are available to the Customer in the "Shopping Cart" and are also described in the "Service Area" of the Digiphot e.K. website. If payment is made by credit card, Digiphot e.K. will not trigger payment until the goods have been dispatched. Unless otherwise expressly agreed, the purchase price is due for payment two weeks after receipt of the invoice by the customer. If the customer is an entrepreneur (cf. Section 2.2.), payments must be made immediately without deduction.
5.3. The following supplementary provisions shall apply in the event of default in payment in the case of customers who are entrepreneurs (cf. Clause 2.2):
- The customer shall be in default of payment without the need for a reminder if payment is not received by Digiphot e.K. within 10 days of receipt of the invoice by the customer. In the event of default or deferral of payment, interest will be charged at a rate of 5 percentage points (consumers) or 9 percentage points (entrepreneurs) above the respective base interest rate. In addition, the customer as a consumer (clause 2.1) will be charged a reminder fee of € 0.7 for each postal reminder, unless it is a first reminder justifying default. In the aforementioned cases, the Customer shall be at liberty to prove that Digiphot e.K. has incurred no damage or less damage than the flat rate. The right to claim the lump sum pursuant to § 288 para. 5 BGB (German Civil Code) against entrepreneurs (cf. section 2.2) and any further damage remains unaffected. The lump sum pursuant to § 288 para. 5 BGB shall also be set off against any further claim for damages.
- In the event of default in payment and/or a significant deterioration in the Customer's financial circumstances, Digiphot e.K. shall be entitled to demand immediate payment of outstanding debts and, at its discretion, to demand payment on delivery or payment in advance for deliveries and services not yet performed. Digiphot e.K assumes a deterioration in the financial circumstances in particular if it receives unsatisfactory credit information about the customer.
- Digiphot e.K. shall be entitled, despite the Customer's provisions to the contrary, to initially offset payments against the Customer's older outstanding debts and shall inform the Customer of the nature of the offset. If costs and interest have already been incurred, Digiphot e.K. shall be entitled to set off the payment first against the costs, then against the interest and finally against the principal claim.
6. Delivery periods
6.1. The delivery times depend on the respective product. On the Digiphot e.K. website, the availability of each product is indicated by symbols and corresponding explanations. Depending on the selected shipping method, delivery will then be made within the usual shipping time from Germany. If the customer chooses the option "collection", he will be informed about the availability of the goods within the period of availability (cf. clause 4.5.).
6.2. If, after the order has been placed by the customer, there is a change in the expected date of availability or dispatch, the customer will be automatically informed of this by e-mail. If the Customer is a consumer (cf. Section 2.1.), he has the right to withdraw from his order free of charge or to make changes at any time before the goods are made available or delivered, unless otherwise expressly agreed between Digiphot e.K. and the Customer.
6.3. If the Customer is an entrepreneur (cf. Clause 2.2.), it shall grant Digiphot e.K. a reasonable period of grace if the period for provision or delivery is exceeded.
7. Non-delivery by upstream suppliers
7.1. Digiphot e.K. does not assume any procurement risk. If the item is not or temporarily not available despite the prior conclusion of a corresponding purchase contract, Digiphot e.K will inform the customer of this immediately after the order and at regular intervals thereafter. Digiphot e.K. shall be released from its obligation to perform until it is supplied by the upstream supplier and may withdraw from the contract if it is unable to deliver. This shall not apply if Digiphot e.K is responsible for the non-delivery by the upstream supplier. If Digiphot e.K. wishes to withdraw, it shall exercise the right of withdrawal without delay.
7.2. In the event of withdrawal, amounts already paid on the purchase price shall be refunded by Digiphot e.K without delay. Claims for damages by the customer are excluded. This shall not apply if Digiphot e.K is responsible for the non-delivery by the upstream supplier.
8. Instructions for the return shipment
8.1. Please use secure - if possible the original - transport packaging for the return shipment.
9. Special provisions for entrepreneurs For customers as entrepreneurs (cf. item 2.2.), the following additional provisions apply:
9.1. Export provisions, export licence in case of resale of the goods
9.1.1. The customer as an entrepreneur (cf. Clause 2.2) warrants and represents that it will comply with all applicable laws, regulations and ordinances relating to export control, including and in particular the Export Administration Act 1979 of the USA, as well as applicable national or EU-wide laws and regulations as amended from time to time and their implementing regulations, insofar as these relate to the activities which are the subject matter of the contract.
9.1.2. The Customer as an entrepreneur (cf. Clause 2.2) is obliged to export goods purchased from Digiphot e.K. to countries listed as prohibited destinations in the laws or regulations referred to in Clause 10.1 only with an appropriate official permit. Upon Digiphot e.K.'s request, the Customer shall provide evidence of such authorisation. The Customer shall not resell the Goods to a Buyer where the Customer has knowledge (or reasonable grounds to believe) that the Buyer intends to export the Goods without first obtaining the required export licence.
9.1.3. If the Customer sells to a reseller, it shall impose on the reseller obligations equivalent to the obligations in these Clauses 10.1.1 and 10.1.2.
9.2. The place of performance shall be the registered office of Digiphot e.K..
9.3. In the case of deliveries to another location, the risk of accidental loss or accidental deterioration shall pass to the Customer at the latest upon handover to the commissioned transport company. This shall also apply in the event that Digiphot e.K. has assumed the costs of transport.
9.4. Items delivered on loan for inspection, trial or other reasons shall be delivered to the Customer at the Customer's risk and shall remain with the Customer at the Customer's risk. The customer shall be responsible for proper use, accidental loss and accidental deterioration.
9.5. If the Customer orders several items which cannot be shipped together due to lack of immediate availability, Digiphot e.K. shall deliver the goods in two partial deliveries, depending on availability, unless the partial delivery is recognisably not of interest to the Customer due to a functional connection of the items or for other reasons. The shipping costs according to clause 5.1. are charged to the customer only once.
9.6. Delivery is made by parcel service provider
9.7. The Customer is obliged to accept the goods. If the Customer does not accept the goods even after a reasonable period of grace, Digiphot e.K. shall be entitled to claim damages in the amount of 20% of the agreed price, unless the Customer proves that Digiphot e.K. has only incurred lesser damages than the aforementioned lump sum. The assertion of further damages by Digiphot e.K. remains unaffected. However, the aforementioned lump sum shall be credited against the damage. The costs for refused or uncollected shipments will be charged to the customer.
9.8. The customer is obliged to inspect the goods immediately upon receipt and, if a defect becomes apparent, to notify Digiphot e.K. without delay. If the customer fails to notify Digiphot e.K., the goods shall be deemed to have been approved, unless the defect was not recognisable during the inspection. If such a defect is discovered later, it must be reported immediately after discovery, otherwise the goods shall be deemed to have been approved also in view of this defect.
9.9. Notification of defects must be made in writing and must include a specific description of the defect. The time limit for giving notice of defects is 48 hours from receipt of the goods, in the case of hidden defects 48 hours from discovery of the defect, unless the customer proves that he was not in a position to comply with the time limit even in the ordinary course of business.
9.10. Externally recognisable damage to the transport packaging as well as recognisable damage to the goods based on this transport damage must be noted and confirmed on the freight forwarder's consignment note or on the delivery note and notified in writing to Digiphot e.K. within 48 hours, enclosing the note, so that Digiphot e.K. for its part can comply with the notification obligation from the transport insurance (cf. Clause 13.4.).
10.1. There is a statutory right of liability for defects. The warranty is based on the statutory provisions as well as the following regulations.
10.2. In the event of a defect in the item, the customer shall request Digiphot e.K. to remedy the defect. If the customer sets a deadline for this, this deadline must be reasonable.
10.3. If the Customer is a merchant and the order is part of the operation of his commercial business, the statutory provisions shall apply to notices of defects. Notifications of defects must be made in writing and in accordance with Clauses 10.8. to 10.10.
10.4. Claims based on material defects shall become statute-barred upon expiry of a period of two years from delivery of the item. If the customer is an entrepreneur (cf. Clause 2.2.), claims for material defects shall become statute-barred upon expiry of a period of one year from delivery of the item. The statutory limitation periods for recourse claims (§ 445b BGB) shall remain unaffected by this.
10.5. The limitation periods set out in clause 11.4, sentence 2 shall not apply in the case of intent or fraudulent concealment of a defect or insofar as Digiphot e.K. has assumed a guarantee for the quality of the delivery item. Furthermore, they do not apply to claims due to material defects in cases of injury to life, limb or health, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of a culpable breach of material contractual duties (cf. Clause 13.2).
10.6. If the customer is an entrepreneur (cf. Clause 2.2), the following provisions shall apply to the warranty for defects:
10.6.1. Returns of goods outside of the Customer's legal or contractual claims arising from the original order shall be subject to Digiphot e.K.'s RMA policy.
10.6.2. in the event of a defect in the item, the customer shall set Digiphot e.K. a reasonable deadline for subsequent performance. Digiphot e.K. shall be entitled to refuse the form of subsequent performance chosen by the customer if this is associated with disproportionate costs. This shall be the case in particular if the costs of subsequent performance exceed the value of the purchased item if it were free of defects or if the costs of subsequent performance exceed the amount by which the defect reduces the value of the purchased item or if the form of subsequent performance other than that chosen by the Buyer is more favourable and does not involve any significant disadvantages for the Buyer.
10.6.3. In this case, the customer's warranty claim is limited to the other type of subsequent performance. If the other type of subsequent performance is also associated with disproportionate costs, Digiphot e.K. may refuse subsequent performance altogether.
10.6.4. In the case of delivery of used goods, warranty claims for defects of the purchased goods as well as claims for damages due to defects of the purchased goods are excluded. This shall not apply in the exceptional cases specified in clause 11.5. Used goods in this sense also include goods which have been reworked and renewed by Digiphot e.K..
10.6.5. Warranty or guarantee claims shall not exist for defects based on operating errors or interventions or repairs by the Customer or third parties not authorised by Digiphot e.K.. This shall also apply in the event of natural wear and tear, temperature and weather influences as well as the use of unsuitable accessories, unless Digiphot e.K. is responsible for such effects.
10.6.6. The customer may not claim damages as a result of errors through no fault of his own and printing or transmission errors which entitle Digiphot e.K to contest.
11. Retention of title
11.1. The delivered goods shall remain the property of Digiphot e.K. until full payment of the purchase price and settlement of all claims arising from the delivery contract.
11.2. If the customer is an entrepreneur (clause 2.2.), Digiphot e.K. shall furthermore retain title to the delivered goods until all claims already accrued at the time of conclusion of the contract, including all claims from follow-up contracts and repeat orders, have been settled (hereinafter also referred to as "total claims"). The Customer, as a businessman, already now assigns to Digiphot e.K. by way of security the full amount of all claims which he acquires against his customer from a resale of the goods. The customer is revocably authorised to collect these claims. Digiphot e.K. shall only revoke the collection authorisation and collect the assigned claims itself if the Customer is in default with its payment obligations towards Digiphot e.K. or if an application has been made to open insolvency proceedings against the Customer's assets.
11.3. Digiphot e.K. shall be obliged to release the existing securities at the customer's request to the extent that their value exceeds the total claims by more than 20%. The choice of the securities to be released shall be at Digiphot e.K.'s discretion.
11.4. If the Customer is an entrepreneur (Clause 2.2.), the Customer shall immediately notify Digiphot e.K. of any seizure by third parties of goods owned or co-owned by Digiphot e.K.. The customer shall bear any costs arising from such interventions for an extrajudicial release.
11.5. Digiphot e.K. shall be entitled to withdraw from contracts in which the delivered goods are subject to retention of title if the Buyer is in default with the payment of the purchase price or a total claim of more than € 250.00. This right of withdrawal is limited to contracts in which the value of the delivered goods amounts to a maximum of 120% of the total receivables.
12.1. Claims for damages due to breach of duty and tort as well as claims for reimbursement of futile expenses are excluded both against Digiphot e.K. and against its vicarious agents.
12.2. This limitation of liability does not apply if the damage was caused intentionally or by gross negligence, as well as in the event of a breach of material contractual obligations, i.e. contractual obligations the fulfilment of which makes the proper performance of the contract possible in the first place and the observance of which the contractual partner may regularly rely on, and the breach of which on the other hand jeopardises the achievement of the purpose of the contract. It does not apply to damages resulting from injury to life, body or health if Digiphot e.K. is responsible for the breach of duty. Furthermore, the limitation does not apply to damages based on the absence of a warranted characteristic or for which liability is provided for under the Product Liability Act.
12.3. In the event of a claim for damages for a slightly negligent breach of material contractual obligations and in cases of a grossly negligent breach of ancillary contractual obligations, liability shall be limited to the foreseeable damage typical for the contract. This shall not apply in cases of personal injury, damage based on the absence of a warranted characteristic or for which liability is provided for under the Product Liability Act.
12.4. To cover the transport risk, the deliveries are automatically insured for transport. The insurance costs depend on the net value of the goods and, in the case of customers who are entrepreneurs (cf. Clause 2.2.), will be invoiced with the ordered goods. Amounts paid by the insurance company shall be credited to the customer by Digiphot e.K. without delay. This shall also apply if liability on the part of Digiphot e.K. is excluded on the basis of the above provisions, but the typically occurring and foreseeable damage is nevertheless covered by the insurance. Further claims of the customer against Digiphot e.K. are excluded in this case.
13. Prohibition of set-off, right of retention
If the customer is an entrepreneur (clause 2.2.), he is not entitled to set-off with claims outside the synallagma, i.e. outside the reciprocal relationship of performance and counter-performance. The prohibition of set-off shall not apply if the counterclaims of Digiphot e.K. are not disputed, legally established or ripe for decision. As an entrepreneur, the customer cannot assert a right of retention unless one of the aforementioned exceptions applies.
14. Online registration, access data
14.1. Insofar as the customer orders goods as a consumer (cf. Clause 2.1), no registration is necessary for the order. For the use of the offer as an entrepreneur (cf. Clause 2.2.) a registration of the customer as well as the storage of the data provided by him is required. After registration, a user account is set up for the customer. The customer will be informed of the required access and usage data (hereinafter referred to as "access data" including the password). Digiphot e.K. is entitled to change the customer's access data at a later date. In this case, the new Access Data will be communicated to the Customer without delay.
14.2. The customer is responsible for the protection of the access data. The access data must be kept secret and may not be made accessible to third parties subject to written consent from Digiphot e.K.. The customer is aware that third parties have the possibility to place orders with Digiphot e.K. on behalf of the customer if they have knowledge of the access data. If the customer discovers or suspects that his access data are being used by third parties, he is obliged to change his access data immediately or, if he is unable to do so, to inform Digiphot e.K. immediately.
14.3. In the event of justified suspicion of misuse of the customer's access data, in particular if this has been reported by the customer, Digiphot e.K. is entitled to block access immediately. Digiphot e.K. shall inform the customer of the blocking.
14.4. Digiphot e.K. is not liable for damages incurred by the customer due to misuse or loss of the access data. This does not apply if the damage was caused intentionally or by gross negligence. Furthermore, the exclusion of liability does not apply to damages resulting from injury to life, body or health if Digiphot e.K is responsible for the breach of duty.
15. Data protection
The data protection practice of Digiphot e.K. is in accordance with the applicable data protection regulations, such as the German Data Protection Regulation (DSGVO), the German Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG). All information on the collection, processing and use of users' personal data can be found in the data protection information.
16. Legal notice regarding the content of the web pages
The contents of the Digiphot e.K. websites are created and updated with a high economic effort. The use of the contents of the Digiphot e.K. web pages may only take place for information purposes of the customer for his own use. Any further use of the contents or linking to the contents for commercial purposes is not permitted. This applies irrespective of the legal protectability in particular to watermarks and other marks of Digiphot e.K, to images, product descriptions, product data and other product information. The customer acknowledges the aforementioned restrictions on the use of the contents of the Digiphot e.K. websites.
17. Changes to the GTC
Digiphot e.K. is entitled to make changes to these GTC with effect for the future. The amendments become effective when the GTC in their amended form are included in a legal transaction. They shall also be deemed to have been effectively agreed if Digiphot e.K notifies the Customer of the amendments in electronic form (e-mail), the Customer can take note of the amendments and does not object to them within three weeks of receipt of the notification of amendment. The notice of change contains the deadline and the consequences of failure to meet the deadline. In the event of an objection, Digiphot e.K. reserves the right to terminate the business relationship.
18. Final provisions, dispute resolution procedure
18.1. The contract shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods and German private international law is excluded. If the customer is a consumer (cf. Clause 2.1.), the mandatory consumer protection provisions applicable in the country in which the customer has his habitual residence shall also apply, provided that they offer the customer more extensive protection.
18.2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all claims arising from the contractual relationship shall be Würzburg. This shall also apply in cases in which the customer's registered office or usual place of residence is moved outside the area of application of the Code of Civil Procedure after conclusion of the contract or is unknown at the time at which legal action is brought.
18.3. Should individual or several provisions of these GTC be or become invalid, both the contract and the remaining terms and conditions shall remain valid. The Customer and Digiphot e.K. undertake to replace the respective provision by provisions which economically correspond to the purpose of the contract.
18.4. Link to the OS platform according to Art.14 para.1 of Regulation EU No. 524/2013: http://ec.europa.eu/consumers/odr/.Digiphot e.K is neither legally nor voluntarily obliged to participate in a dispute resolution procedure before a consumer arbitration board. In the event of a conflict, Digiphot e.K will endeavour to find a mutually acceptable solution with the customer. Since arbitration boards are liable to pay costs, Digiphot e.K will not participate in a dispute resolution procedure before a consumer arbitration board, even in the well-understood cost interest of the customer.
Status: 15 November 2019