NEED SERVICE? LOOKING FOR HELP? IN THIS AREA YOU WILL FIND ALL THE HELP YOU NEED!
IMPRINT
endeavour GmbH
Max-Planck-Str.4
48691 Vreden
Germany
CEO : Simon Kemper
Tel.: +49 (0) 2564 3929992
Fax +49 (0)2564 3929979
info@endeavour.de
48691 Vreden
Germany
CEO : Simon Kemper
Tel.: +49 (0) 2564 3929992
Fax +49 (0)2564 3929979
info@endeavour.de
REGISTERED OFFICE
HRB 12788 Amtsgericht Coesfeld
VAT ID
VAT-ID. DE270924878
AGBs (Terms of Usage / Conditions)
AGBs
Conditions of Use
General Terms and Conditions of Business
endeavour GmbH
1. Scope of applicability
Deliveries and services (hereinafter referred to as “the subject of the delivery”) of endeavour GmbH (hereinafter referred to as “endeavour”) are provided on the basis of these General Terms and Conditions of Business, unless otherwise agreed.
The inclusion of business or purchasing conditions of the customer is hereby explicitly objected to.
Any additional arrangements or deviations from these terms and conditions must be agreed between the parties in writing.
2. Contract conclusion
2.1. endeavour’s offers are subject to confirmation and are not binding, unless otherwise explicitly agreed in writing. The written form is required for the purposes of providing proof.
2.2. If the delivery or service is carried out without the customer receiving a prior confirmation, the contract shall be deemed concluded upon acceptance of the delivery or service subject to these terms and conditions.
2.3. Additional arrangements, amendments, additions etc. shall require written confirmation by endeavour. The written form is required for the purposes of providing proof.
2.4. Images, drawings, workflow descriptions and weight and dimension data contained in advertising materials, product information or other descriptions are only intended to act as a guide. They shall not become part of the contract unless explicitly included and do not constitute assurances of particular properties or guarantees, unless endeavour explicitly confirms the property in question as being an assured property or explicitly provides a guarantee.
2.5. endeavour shall retain the ownership title and copyright to all documentation. It must not be made available to third parties without endeavour’s written consent.
2.6. Orders are currently only possible from the Federal Republic of Germany, the European Union and the USA.
3. Delivery and performance
3.1. endeavour reserves the right to extend, modify or restrict its services and to carry out improvements, provided that as a result neither the subject of the delivery nor its functions are changed to the customer’s detriment and usability for the contractually envisaged purpose is not impaired.
Design, form and color modifications are permitted at any time subject to the same requirements, provided that those changes are reasonable for the customer.
3.2. Partial deliveries and services and their invoicing are permitted, unless this is unreasonable for the customer.
3.3. Delivery times and deadlines are not binding, unless they have been explicitly agreed in writing. The written form is required for the purposes of providing proof. The fulfillment of the delivery obligation requires that the customer fulfills his obligations correctly and in good time.
3.4. Delivery deadlines shall be deemed to have been met if the subject of the delivery or service is shipped within the time limit.
3.5. If, for reasons for which it is not responsible, endeavour does not receive deliveries or services from its subsuppliers or subcontractors or does not receive them correctly or in good time, despite proper stock levels being maintained, or if events of force majeure occur, endeavour shall inform the customer to that effect in good time. In such a situation, endeavour shall have the right to delay the delivery or service for the duration of the impediment or to entirely or partially rescind the contract with regard to the unfulfilled part thereof, provided that it has complied with the above-mentioned notification obligation and has not assumed the procurement risk or production risk. Events of force majeure are defined as strikes, lock-outs, interventions by governmental authorities, scarcity of energy or raw materials, transportation bottlenecks and operational impediments, for which endeavour is not at fault, for example due to fire, water or machine damage, as well as any other impediments that objectively considered were not culpably caused by endeavour.
3.6. If a delivery or service deadline or a time limit for a delivery or service has been agreed with binding effect and if, due to events such as specified in Section 3.5 above, the agreed delivery or service deadline or the agreed time limit for a delivery or service is exceeded by more than four weeks, or if a performance deadline has been agreed without binding effect and the customer cannot objectively be reasonably expected to comply with the contract, the customer shall have the right to rescind the contract with regard to the part which has not yet been fulfilled; in the latter case, the customer shall have no further rights and, in particular, no right to claim for compensation.
3.7. If the contract is not fulfilled due to reasons for which the customer is responsible, endeavour shall be entitled to invoice all partial services which have already been provided according to the currently applicable price-list. Any agreed discounts or percentage discounts on package prices shall not be applicable in the invoicing of those services.
3.8. If endeavour is late in making a delivery or providing a service, its liability to pay compensation shall be limited, in the event of simple negligence, to 5% of the contractually agreed price. Further claims of the customer shall remain unaffected.
3.9. endeavour can arrange to have its services rendered by third parties.
4. Right of retention and set-off
4.1. If the customer is a trader, a legal person under public law or a public special fund, he shall not be entitled to a right of retention.
4.2. The customer can only assert a set-off right with respect to endeavour’s claims if the claim to be set off is undisputed or has been established with legally binding effect.
5. Prices
5.1. The product price shall be specified in the invoice sent to the customer.
5.2. The customer shall pay VAT in the currently applicable amount, as specified on the invoice. VAT-free purchases are not possible, including for purchases which are carried out through endeavour’s website within the EU.
5.3. If shipping costs are incurred, they shall be borne by the customer in the amount specified on endeavour’s website.
6. Transfer of risk
6.1. The risk shall be transferred to the customer when the subject of the delivery is transferred to the carrier or forwarder or when it leaves endeavour’s premises for the purpose of shipping, irrespective of whether the transfer and/or shipment occurs from the place of performance, who bears the freight charges and who carries out the transportation.
6.2 If the subject of the delivery is ready to be shipped and the shipment or acceptance is delayed for reasons for which endeavour is not responsible, the risk shall transfer to the customer when he receives the notification that the goods are ready to be shipped.
6.3. If requested by the customer, the shipment shall be insured by endeavour at the customer’s expense against theft, breakage, damage in transit, fire and water damage and other insurable risks.
6.4. If endeavour is obliged to assemble the subject of the delivery, it shall only bear the risk until the time of acceptance of the delivery to the extent that the assembly work is performed within its exclusive sphere of risk and influence.
7. Retention of ownership
7.1. endeavour shall retain the ownership title to the subject of the delivery until all its claims against the customer to which it is entitled as a result of the business relationship have been fulfilled.
If the value of all security interests to which endeavour is entitled exceeds the amount of all the secured claims by more than 10%, the customer shall have the right to demand the release of security to that extent.
7.2. Delivered goods to which endeavour has a right to retention of ownership can only be sold by the customer in the normal course of business. The customer assigns to endeavour already now all receivables from his customers or third parties, in the amount of the final invoice total including VAT, which arise for him from the resale, irrespective of whether the subject of the delivery was resold without or after processing. endeavour’s right to collect the receivables itself is not affected by this.
If the customer ceases making payments, the right of resale shall expire.
7.3. The customer is not permitted to pledge goods subject to retention of title or assign them as security.
7.4. If the subject of the delivery is seized, endeavour shall have the right to rescind the contract without setting a time limit. In the event of seizures or other interventions by third parties, the customer must immediately notify endeavour in writing so that it can take legal action under Article 771 of the German Code of Civil Procedure (ZPO).
7.5. The customer shall keep the property in safe storage on behalf of endeavour and insure it against the usual risks, such as fire, theft, water etc. to the customary extent. This also applies to the transportation of any goods subject to retention of title. The customer assigns to endeavour already now its claims to compensation to which it is entitled as a result of damage of the above-mentioned type against insurers or other third parties, in the amount of the invoice value.
7.6. The customer shall immediately notify endeavour of the loss or destruction of or any damage to the goods subject to retention of title and provide it with the relevant documents and expert opinions relating to the damage along with the insurance policy and security certificate.
8. Warranty
8.1. If the customer is a trader, he shall comply with the obligations provided for in Article 377 of the German Commercial Code (HGB). Furthermore, he must submit any complaints regarding defects which are identifiable upon delivery to the transport company and ensure that it records the defects. Notifications of defects must contain a description of the defect with as much detail as possible. If a complaint is not submitted on time, any claims of the customer shall be forfeited if the customer is a trader.
8.2. Upon the beginning of any treatment, processing, combining or mixing with other items, the delivered goods shall be deemed to have been approved by the customer in accordance with the contract. The same applies where the goods are forwarded away from the original destination.
8.3. Any liability of endeavour for breaches of obligations due to material defects is excluded, unless defects and related damage demonstrably result from defective materials, defective design, defective workmanship or defective assembly instructions. In particular, no warranty is provided and no liability is assumed for damage arising due to incorrect use (particularly with regard to installation which does not correspond to the state of the art of technology or is contrary to the installation instructions), the natural wear and tear of the goods, excessive use or inappropriate equipment, or as a consequence of physical, chemical or electrical effects which do not correspond to the envisaged average standard effects.
8.4. In the event of resale of the goods, the customer’s rights of recourse against endeavour shall only apply if the customer has not made any commitments towards his customer(s) beyond the statutory claims for defects.
8.5. If the customer is a trader, a legal person under public law or a public special fund, the limitation period for claims for defects shall amount to 12 months. This does not apply to claims relating to an injury to life, body or health or in the event of grossly negligent conduct by endeavour.
9. Guarantee
9.1. Without prejudice to statutory claims of the customer stemming from liability for material defects, endeavour provides a two-year guarantee for the "evo - series one". In the event of a guarantee claim, the customer shall be entitled to have the device replaced free of charge.
9.2. If the device has been returned under the terms of the guarantee and bears traces of an impact or fall, the guarantee shall expire. Falls and impacts are therefore not covered by the guarantee and shall result in the guarantee expiring, as it cannot be ruled out that the impact or fall may have caused damage.
9.3. The guarantee shall also expire if the device has been exposed to a high degree of humidity, exceeding normal atmospheric humidity, or if it is placed under water.
9.4. The guarantee does not cover damage resulting from the use of a third-party power supply unit which was not provided by endeavour in the scope of the delivery or damage due to excess voltage resulting from inappropriate handling. If the customer submits a complaint to endeavour concerning a defective device, it must without fail be sent back to endeavour with the power supply unit so that endeavour can determine whether the defect or damage were caused by inappropriate handling (for example replacing the power supply unit or incorrect polarity). If the customer fails to provide the power supply unit for examination, it shall not be entitled to any rights under this guarantee.
9.5 The guarantee shall also expire if the customer opens the housing of the device.
10. Compensation for damage
10.1. Claims of the customer against endeavour and its vicarious agents for compensation are excluded. This does not apply to claims based on damage due to injury to life, body or health. The exclusion of liability also does not apply if the damage resulted from a grossly negligent breach of obligation by endeavour or one of its statutory representatives or vicarious agents.
10.2. Lastly, the exclusion of liability does not apply where damage is attributable to a breach of key obligations by endeavour. If the customer is a trader, a legal person under public law or a public special fund, endeavour shall be liable in such a situation, but only up to the amount that was foreseeable upon the conclusion of the contract or during the contract negotiations as a possible consequence of the beach of obligation or that was foreseeable in view of the circumstances that endeavour was or should have been aware of.
10.3. Key obligations are obligations that protect legal positions of the customer which are material to the contract and which, according to its content and purpose, the contract is supposed to confer on the customer. Key obligations are also obligations whose fulfillment makes it possible to correctly perform the contract and upon whose fulfillment the customer has generally relied and can rely.
10.4 The mandatory liability under the provisions of the German Product Liability Act (Produkthaftungsgesetz) also remains unaffected.
10.5. No reversal of the burden of proof is associated with the provisions of Section 10 above.
11. Place of jurisdiction, place of performance and applicable law
11.1. If the customer is a trader, a legal person under public law or a public special fund, the place of performance and the place of jurisdiction for lawsuits of any kind is the location of endeavour’s registered office. However, endeavour has the right to also take legal action at the location of the customer’s registered office.
11.2. These terms and conditions and all contracts concluded in accordance with them are subject to German law. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
12. Payment method
12.1 The possible payment methods are specified on endeavour’s website. The currently available payment methods are wire transfer and PayPal.
12.2 Payment must be made in the currency specified on the invoice.
13. Cancellation and costs
13.1 Cancellation right
If the customer is a natural person and purchases products or services for a purpose which cannot be attributed to his commercial or independent professional activities, he shall have the following statutory cancellation right:
Cancellation notice
Cancellation right
The customer can revoke his contractual declaration within 14 days without giving reasons, in text form (e.g. by letter, fax or e-mail) or, if the goods are provided to him before the end of the time limit, by sending the goods back. The time limit shall begin after the customer receives this notice in text form, but not before the goods are received by the recipient (with regard to recurrent deliveries of similar goods not before the first partial delivery is received) and also not before we have fulfilled our notification obligations under Article 246.2 in conjunction with Article 1 para. 1 and 2 of the Introductory Act to the German Civil Code (EGBGB) and our obligations under Article 312g para. 1 sentence 1 of the German Civil Code (BGB) in conjunction with Article 246.3 of the Introductory Act to the German Civil Code. If this notice is delivered in text form after the conclusion of the contract, the time limit shall amount to one month instead of two weeks. The cancellation time limit shall be deemed complied with if the cancellation notice or the goods in question are dispatched in good time. The cancellation notice should be sent to:
endeavour GmbH, Max-Planck-Str. 4, 48691 Vreden, Germany
The consequences of cancellation
In the event of an effective cancellation, goods or services received by both parties must be returned and any benefits derived (e.g. interest) must also be returned. To the extent that the customer cannot return or surrender the received goods or benefits (e.g. benefits of use) to endeavour or can only return or surrender them partially or in a deteriorated condition, he will have to provide endeavour with compensation. The customer must only provide compensation for the deterioration of the goods and for benefits derived to the extent that the benefits or the deterioration are attributable to handling of the item beyond the inspection of its properties and functionality. “Inspection of the item’s properties and functionality” should be understood to mean testing and trying out the goods in question as would be possible and normal practice in a shop. Items capable of being shipped as a parcel shall be sent back at endeavour’s risk. The customer shall bear the regular costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the item to be sent back does not exceed € 40 or, where the price of the item is higher, if at the time of the cancellation the customer has not yet rendered the counter-performance or made a contractually agreed partial payment. Otherwise, the return shipment of the goods shall be free of charge for the customer. Items which are not capable of being shipped as a parcel will be collected from the customer. Obligations to reimburse payments must be fulfilled within 30 days. The time limit for the customer shall begin when he dispatches his declaration of cancellation or the goods and for endeavour upon the receipt thereof.
Related transactions
If the customer has financed this contract with a loan and then cancels the contract financed thereby, he shall also no longer be bound by the loan contract, provided that the two contracts form a commercial whole. This is particularly the case if endeavour is also the customer’s lender or if the customer’s lender relies on endeavour’s cooperation with respect to the financing. If endeavour has already received the loan when the cancellation becomes effective or when the goods are returned, the customer’s lender shall accede to endeavour’s rights and obligations under the financed contract in the relationship with the customer with regard to the legal consequences of the cancellation or the return. This last provision shall not apply if this contract concerns the purchase of financial instruments (for example securities, foreign currency or derivatives). If the customer wishes to avoid a contractual obligation as far as possible, he should exercise his cancellation right and also cancel the loan agreement, if he also has a cancellation right with regard to it.
End of the cancellation notice
13.2 Agreement on the payment of costs
If the customer exercises his cancellation right, he shall bear the costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the item to be sent back does not exceed € 40 or, where the price of the item is higher, if at the time of the cancellation the customer has not yet rendered the counter-performance or made a contractually agreed partial payment.
14. Data protection
endeavour will store, process and use the personal data provided by the customer on the order form in order to fulfill the order. It shall pass some of that data on to the transportation company engaged by it to handle the order. Upon request, endeavour shall provide the customer with a list of the stored data free of charge. Incorrectly stored data shall be corrected at the customer’s written request. If the customer has agreed to endeavour’s use of his personal data in a manner which is not permitted by law, he can withdraw that consent at any time.
15. Severability clause
Should one or more provisions of these terms and conditions be or become ineffective, the effectiveness of the other provisions hereof shall not be affected.
The parties undertake to replace the ineffective provision with another provision which comes closest in commercial terms to the ineffective provision.
(As at December 2011)
GTCs of endeavour © endeavour GmbH
Page 1 of 7 Wednesday, 7 March 2012
General Terms and Conditions of Business
endeavour GmbH
1. Scope of applicability
Deliveries and services (hereinafter referred to as “the subject of the delivery”) of endeavour GmbH (hereinafter referred to as “endeavour”) are provided on the basis of these General Terms and Conditions of Business, unless otherwise agreed.
The inclusion of business or purchasing conditions of the customer is hereby explicitly objected to.
Any additional arrangements or deviations from these terms and conditions must be agreed between the parties in writing.
2. Contract conclusion
2.1. endeavour’s offers are subject to confirmation and are not binding, unless otherwise explicitly agreed in writing. The written form is required for the purposes of providing proof.
2.2. If the delivery or service is carried out without the customer receiving a prior confirmation, the contract shall be deemed concluded upon acceptance of the delivery or service subject to these terms and conditions.
2.3. Additional arrangements, amendments, additions etc. shall require written confirmation by endeavour. The written form is required for the purposes of providing proof.
2.4. Images, drawings, workflow descriptions and weight and dimension data contained in advertising materials, product information or other descriptions are only intended to act as a guide. They shall not become part of the contract unless explicitly included and do not constitute assurances of particular properties or guarantees, unless endeavour explicitly confirms the property in question as being an assured property or explicitly provides a guarantee.
2.5. endeavour shall retain the ownership title and copyright to all documentation. It must not be made available to third parties without endeavour’s written consent.
2.6. Orders are currently only possible from the Federal Republic of Germany, the European Union and the USA.
3. Delivery and performance
3.1. endeavour reserves the right to extend, modify or restrict its services and to carry out improvements, provided that as a result neither the subject of the delivery nor its functions are changed to the customer’s detriment and usability for the contractually envisaged purpose is not impaired.
Design, form and color modifications are permitted at any time subject to the same requirements, provided that those changes are reasonable for the customer.
3.2. Partial deliveries and services and their invoicing are permitted, unless this is unreasonable for the customer.
3.3. Delivery times and deadlines are not binding, unless they have been explicitly agreed in writing. The written form is required for the purposes of providing proof. The fulfillment of the delivery obligation requires that the customer fulfills his obligations correctly and in good time.
3.4. Delivery deadlines shall be deemed to have been met if the subject of the delivery or service is shipped within the time limit.
3.5. If, for reasons for which it is not responsible, endeavour does not receive deliveries or services from its subsuppliers or subcontractors or does not receive them correctly or in good time, despite proper stock levels being maintained, or if events of force majeure occur, endeavour shall inform the customer to that effect in good time. In such a situation, endeavour shall have the right to delay the delivery or service for the duration of the impediment or to entirely or partially rescind the contract with regard to the unfulfilled part thereof, provided that it has complied with the above-mentioned notification obligation and has not assumed the procurement risk or production risk. Events of force majeure are defined as strikes, lock-outs, interventions by governmental authorities, scarcity of energy or raw materials, transportation bottlenecks and operational impediments, for which endeavour is not at fault, for example due to fire, water or machine damage, as well as any other impediments that objectively considered were not culpably caused by endeavour.
3.6. If a delivery or service deadline or a time limit for a delivery or service has been agreed with binding effect and if, due to events such as specified in Section 3.5 above, the agreed delivery or service deadline or the agreed time limit for a delivery or service is exceeded by more than four weeks, or if a performance deadline has been agreed without binding effect and the customer cannot objectively be reasonably expected to comply with the contract, the customer shall have the right to rescind the contract with regard to the part which has not yet been fulfilled; in the latter case, the customer shall have no further rights and, in particular, no right to claim for compensation.
3.7. If the contract is not fulfilled due to reasons for which the customer is responsible, endeavour shall be entitled to invoice all partial services which have already been provided according to the currently applicable price-list. Any agreed discounts or percentage discounts on package prices shall not be applicable in the invoicing of those services.
3.8. If endeavour is late in making a delivery or providing a service, its liability to pay compensation shall be limited, in the event of simple negligence, to 5% of the contractually agreed price. Further claims of the customer shall remain unaffected.
3.9. endeavour can arrange to have its services rendered by third parties.
4. Right of retention and set-off
4.1. If the customer is a trader, a legal person under public law or a public special fund, he shall not be entitled to a right of retention.
4.2. The customer can only assert a set-off right with respect to endeavour’s claims if the claim to be set off is undisputed or has been established with legally binding effect.
5. Prices
5.1. The product price shall be specified in the invoice sent to the customer.
5.2. The customer shall pay VAT in the currently applicable amount, as specified on the invoice. VAT-free purchases are not possible, including for purchases which are carried out through endeavour’s website within the EU.
5.3. If shipping costs are incurred, they shall be borne by the customer in the amount specified on endeavour’s website.
6. Transfer of risk
6.1. The risk shall be transferred to the customer when the subject of the delivery is transferred to the carrier or forwarder or when it leaves endeavour’s premises for the purpose of shipping, irrespective of whether the transfer and/or shipment occurs from the place of performance, who bears the freight charges and who carries out the transportation.
6.2 If the subject of the delivery is ready to be shipped and the shipment or acceptance is delayed for reasons for which endeavour is not responsible, the risk shall transfer to the customer when he receives the notification that the goods are ready to be shipped.
6.3. If requested by the customer, the shipment shall be insured by endeavour at the customer’s expense against theft, breakage, damage in transit, fire and water damage and other insurable risks.
6.4. If endeavour is obliged to assemble the subject of the delivery, it shall only bear the risk until the time of acceptance of the delivery to the extent that the assembly work is performed within its exclusive sphere of risk and influence.
7. Retention of ownership
7.1. endeavour shall retain the ownership title to the subject of the delivery until all its claims against the customer to which it is entitled as a result of the business relationship have been fulfilled.
If the value of all security interests to which endeavour is entitled exceeds the amount of all the secured claims by more than 10%, the customer shall have the right to demand the release of security to that extent.
7.2. Delivered goods to which endeavour has a right to retention of ownership can only be sold by the customer in the normal course of business. The customer assigns to endeavour already now all receivables from his customers or third parties, in the amount of the final invoice total including VAT, which arise for him from the resale, irrespective of whether the subject of the delivery was resold without or after processing. endeavour’s right to collect the receivables itself is not affected by this.
If the customer ceases making payments, the right of resale shall expire.
7.3. The customer is not permitted to pledge goods subject to retention of title or assign them as security.
7.4. If the subject of the delivery is seized, endeavour shall have the right to rescind the contract without setting a time limit. In the event of seizures or other interventions by third parties, the customer must immediately notify endeavour in writing so that it can take legal action under Article 771 of the German Code of Civil Procedure (ZPO).
7.5. The customer shall keep the property in safe storage on behalf of endeavour and insure it against the usual risks, such as fire, theft, water etc. to the customary extent. This also applies to the transportation of any goods subject to retention of title. The customer assigns to endeavour already now its claims to compensation to which it is entitled as a result of damage of the above-mentioned type against insurers or other third parties, in the amount of the invoice value.
7.6. The customer shall immediately notify endeavour of the loss or destruction of or any damage to the goods subject to retention of title and provide it with the relevant documents and expert opinions relating to the damage along with the insurance policy and security certificate.
8. Warranty
8.1. If the customer is a trader, he shall comply with the obligations provided for in Article 377 of the German Commercial Code (HGB). Furthermore, he must submit any complaints regarding defects which are identifiable upon delivery to the transport company and ensure that it records the defects. Notifications of defects must contain a description of the defect with as much detail as possible. If a complaint is not submitted on time, any claims of the customer shall be forfeited if the customer is a trader.
8.2. Upon the beginning of any treatment, processing, combining or mixing with other items, the delivered goods shall be deemed to have been approved by the customer in accordance with the contract. The same applies where the goods are forwarded away from the original destination.
8.3. Any liability of endeavour for breaches of obligations due to material defects is excluded, unless defects and related damage demonstrably result from defective materials, defective design, defective workmanship or defective assembly instructions. In particular, no warranty is provided and no liability is assumed for damage arising due to incorrect use (particularly with regard to installation which does not correspond to the state of the art of technology or is contrary to the installation instructions), the natural wear and tear of the goods, excessive use or inappropriate equipment, or as a consequence of physical, chemical or electrical effects which do not correspond to the envisaged average standard effects.
8.4. In the event of resale of the goods, the customer’s rights of recourse against endeavour shall only apply if the customer has not made any commitments towards his customer(s) beyond the statutory claims for defects.
8.5. If the customer is a trader, a legal person under public law or a public special fund, the limitation period for claims for defects shall amount to 12 months. This does not apply to claims relating to an injury to life, body or health or in the event of grossly negligent conduct by endeavour.
9. Guarantee
9.1. Without prejudice to statutory claims of the customer stemming from liability for material defects, endeavour provides a two-year guarantee for the "evo - series one". In the event of a guarantee claim, the customer shall be entitled to have the device replaced free of charge.
9.2. If the device has been returned under the terms of the guarantee and bears traces of an impact or fall, the guarantee shall expire. Falls and impacts are therefore not covered by the guarantee and shall result in the guarantee expiring, as it cannot be ruled out that the impact or fall may have caused damage.
9.3. The guarantee shall also expire if the device has been exposed to a high degree of humidity, exceeding normal atmospheric humidity, or if it is placed under water.
9.4. The guarantee does not cover damage resulting from the use of a third-party power supply unit which was not provided by endeavour in the scope of the delivery or damage due to excess voltage resulting from inappropriate handling. If the customer submits a complaint to endeavour concerning a defective device, it must without fail be sent back to endeavour with the power supply unit so that endeavour can determine whether the defect or damage were caused by inappropriate handling (for example replacing the power supply unit or incorrect polarity). If the customer fails to provide the power supply unit for examination, it shall not be entitled to any rights under this guarantee.
9.5 The guarantee shall also expire if the customer opens the housing of the device.
10. Compensation for damage
10.1. Claims of the customer against endeavour and its vicarious agents for compensation are excluded. This does not apply to claims based on damage due to injury to life, body or health. The exclusion of liability also does not apply if the damage resulted from a grossly negligent breach of obligation by endeavour or one of its statutory representatives or vicarious agents.
10.2. Lastly, the exclusion of liability does not apply where damage is attributable to a breach of key obligations by endeavour. If the customer is a trader, a legal person under public law or a public special fund, endeavour shall be liable in such a situation, but only up to the amount that was foreseeable upon the conclusion of the contract or during the contract negotiations as a possible consequence of the beach of obligation or that was foreseeable in view of the circumstances that endeavour was or should have been aware of.
10.3. Key obligations are obligations that protect legal positions of the customer which are material to the contract and which, according to its content and purpose, the contract is supposed to confer on the customer. Key obligations are also obligations whose fulfillment makes it possible to correctly perform the contract and upon whose fulfillment the customer has generally relied and can rely.
10.4 The mandatory liability under the provisions of the German Product Liability Act (Produkthaftungsgesetz) also remains unaffected.
10.5. No reversal of the burden of proof is associated with the provisions of Section 10 above.
11. Place of jurisdiction, place of performance and applicable law
11.1. If the customer is a trader, a legal person under public law or a public special fund, the place of performance and the place of jurisdiction for lawsuits of any kind is the location of endeavour’s registered office. However, endeavour has the right to also take legal action at the location of the customer’s registered office.
11.2. These terms and conditions and all contracts concluded in accordance with them are subject to German law. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
12. Payment method
12.1 The possible payment methods are specified on endeavour’s website. The currently available payment methods are wire transfer and PayPal.
12.2 Payment must be made in the currency specified on the invoice.
13. Cancellation and costs
13.1 Cancellation right
If the customer is a natural person and purchases products or services for a purpose which cannot be attributed to his commercial or independent professional activities, he shall have the following statutory cancellation right:
Cancellation notice
Cancellation right
The customer can revoke his contractual declaration within 14 days without giving reasons, in text form (e.g. by letter, fax or e-mail) or, if the goods are provided to him before the end of the time limit, by sending the goods back. The time limit shall begin after the customer receives this notice in text form, but not before the goods are received by the recipient (with regard to recurrent deliveries of similar goods not before the first partial delivery is received) and also not before we have fulfilled our notification obligations under Article 246.2 in conjunction with Article 1 para. 1 and 2 of the Introductory Act to the German Civil Code (EGBGB) and our obligations under Article 312g para. 1 sentence 1 of the German Civil Code (BGB) in conjunction with Article 246.3 of the Introductory Act to the German Civil Code. If this notice is delivered in text form after the conclusion of the contract, the time limit shall amount to one month instead of two weeks. The cancellation time limit shall be deemed complied with if the cancellation notice or the goods in question are dispatched in good time. The cancellation notice should be sent to:
endeavour GmbH, Max-Planck-Str. 4, 48691 Vreden, Germany
The consequences of cancellation
In the event of an effective cancellation, goods or services received by both parties must be returned and any benefits derived (e.g. interest) must also be returned. To the extent that the customer cannot return or surrender the received goods or benefits (e.g. benefits of use) to endeavour or can only return or surrender them partially or in a deteriorated condition, he will have to provide endeavour with compensation. The customer must only provide compensation for the deterioration of the goods and for benefits derived to the extent that the benefits or the deterioration are attributable to handling of the item beyond the inspection of its properties and functionality. “Inspection of the item’s properties and functionality” should be understood to mean testing and trying out the goods in question as would be possible and normal practice in a shop. Items capable of being shipped as a parcel shall be sent back at endeavour’s risk. The customer shall bear the regular costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the item to be sent back does not exceed € 40 or, where the price of the item is higher, if at the time of the cancellation the customer has not yet rendered the counter-performance or made a contractually agreed partial payment. Otherwise, the return shipment of the goods shall be free of charge for the customer. Items which are not capable of being shipped as a parcel will be collected from the customer. Obligations to reimburse payments must be fulfilled within 30 days. The time limit for the customer shall begin when he dispatches his declaration of cancellation or the goods and for endeavour upon the receipt thereof.
Related transactions
If the customer has financed this contract with a loan and then cancels the contract financed thereby, he shall also no longer be bound by the loan contract, provided that the two contracts form a commercial whole. This is particularly the case if endeavour is also the customer’s lender or if the customer’s lender relies on endeavour’s cooperation with respect to the financing. If endeavour has already received the loan when the cancellation becomes effective or when the goods are returned, the customer’s lender shall accede to endeavour’s rights and obligations under the financed contract in the relationship with the customer with regard to the legal consequences of the cancellation or the return. This last provision shall not apply if this contract concerns the purchase of financial instruments (for example securities, foreign currency or derivatives). If the customer wishes to avoid a contractual obligation as far as possible, he should exercise his cancellation right and also cancel the loan agreement, if he also has a cancellation right with regard to it.
End of the cancellation notice
13.2 Agreement on the payment of costs
If the customer exercises his cancellation right, he shall bear the costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the item to be sent back does not exceed € 40 or, where the price of the item is higher, if at the time of the cancellation the customer has not yet rendered the counter-performance or made a contractually agreed partial payment.
14. Data protection
endeavour will store, process and use the personal data provided by the customer on the order form in order to fulfill the order. It shall pass some of that data on to the transportation company engaged by it to handle the order. Upon request, endeavour shall provide the customer with a list of the stored data free of charge. Incorrectly stored data shall be corrected at the customer’s written request. If the customer has agreed to endeavour’s use of his personal data in a manner which is not permitted by law, he can withdraw that consent at any time.
15. Severability clause
Should one or more provisions of these terms and conditions be or become ineffective, the effectiveness of the other provisions hereof shall not be affected.
The parties undertake to replace the ineffective provision with another provision which comes closest in commercial terms to the ineffective provision.
(As at December 2011)
GTCs of endeavour © endeavour GmbH
Page 1 of 7 Wednesday, 7 March 2012