Terms and Conditions
Table of contents
2. Contract Conclusion
3. Subject of the Contract
4. Granting of Rights for a Contract on the Delivery of Software
5. Granting of Rights for Contract on the Temporary Provision of Software
6. Customer's Obligations
7. Right of Revocation
8. Prices and Payment Terms
9. Delivery & Shipping Terms
10. Retention of Title
11. Warranty for Contracts under Cl. 3.2, 3.3 a) and 3.3 c)
12. Warranty for Contracts under Cl. 3.3 b)
13. “100% Money-Back Guarantee” Guarantee Terms
14. Liability for Other Breaches of Duty
15. Redemption of Campaign Vouchers
16. Naming as Reference
17. Final Provisions
1.1 These General Terms & Conditions (hereinafter “GTC”) of lizengo GmbH & Co. (hereinafter “Seller”) shall apply to all contracts of the Seller and a contracting partner (hereinafter “Customer”) on the sale, delivery and temporary provision of digital contents, digital goods and non-digital goods (hereinafter collectively also “Goods”). To the extent that the Seller also offers services, the Seller shall render them exclusively as ancillary service to the aforementioned purchase contracts. Deviating, conflicting or complementing General Terms & Provisions of the Customer shall become part of a contract only if and to the extent that the Seller expressly consented to their application. A tacit recognition of General Terms & Conditions of the Customer by the Seller by conclusive behaviour shall be excluded. Such consent requirement shall apply in any case, including, for example, if the Seller unconditionally renders services towards the Customer while being aware of the Customer’s General Terms & Conditions.
1.2 These GTC shall apply towards both consumers (section 13 BGB (German Civil Code)) and entrepreneurs (section 14 BGB). Unless the GTC below contain separate notes, any and all terms shall equally apply to contracts with entrepreneurs and consumers. Where individual terms do not apply to consumers at all or only in modified form, this shall be expressly mentioned.
1.3 These terms shall also apply to future contractual relationships between the Customer and the Seller where the Customer is entrepreneur.
1.4 Digital contents in the sense hereof shall be all digital services, except for digital Goods, any digitally existing access codes, product keys or other digitally existing information.
1.5 Digital Goods in the sense hereof shall be any software not existing on a physical data carrier that is provided by the Seller for downloading, where appropriate with certain rights of use being granted under cl. 5 and 6.
1.6 Non-digital Goods in the sense hereof shall be any software existing on a physical data carrier that is distributed in physical form by the Seller, where appropriate with certain rights of use being granted under cl. 5 and 6, as well as other physical products.
1.7 The Seller operates an online shop via an own website (hereinafter “Online Shop”). In addition, the Seller also sells products via various marketplaces, such as ebay.de, rakuten.de or rueducommerce.fr (hereinafter individually “Marketplace” and collectively “Marketplaces”).
1.8 By sending the purchase order under cl. 2.2, the Customer shall agree with these GTC.
2) Contract Conclusion
2.1 The contract conclusion with regard to a purchase via the Seller’s Online Shop shall not yet materialise with the Customer placing the purchase order. The Customer’s purchase order shall rather be the submission of an offer for contract conclusion. The prices, price quotes and descriptions of Goods or other services specified and mentioned in the Seller’s Online Shop shall not be an offer.
2.2 The contract conclusion for a purchase via one of the Marketplaces shall materialise with the Customer placing the purchase order.
2.3 Before bindingly placing the purchase order, the Customer may detect possible input errors by carefully reading the information displayed on the screen. An effective technical means of better detecting input errors in this context may be the zoom function of the browser which allows to enlarge the display on the screen. The Customer may correct his entries during the electronic order process via the usual keyboard and mouse functions until clicking on the button completing the order process.
2.4 The order confirmation for a purchase via the Online Shop shall not constitute acceptance of the purchase offer by the Seller. In this case, a contract between the Seller and the Customer shall materialise only by another action of the Seller under cl. 2.5.
2.5 The Seller may accept the Customer’s offer within five days by
- a) personally delivering or having a trading partner (e.g. Amazon EU S.à.r.l.) deliver the ordered Goods to the Customer, with receipt of the Goods by the Customer prevailing, or
- b) requesting payment from the Customer by separate communication after submission of the Customer’s purchase order. This shall also include the selection of a payment method in the order process by which the ordered Goods shall be paid before shipping.
If several of the aforementioned alternatives exist, the contract shall be concluded upon occurrence of the first of these alternatives.
2.6 The deadline for accepting the offer under cl. 2.5 shall start on the day after the Customer sending the offer and shall end with the expiry of the fifth days following the sending of the offer. If the Seller does not accept the Customer’s offer within the aforementioned deadline, the offer shall be deemed rejected, with the Customer no longer being bound to the Customer’s declaration of intent.
2.7 The contract may be concluded only in the English language.
2.8 If the Customer indicates an e-mail address for contract handling, the Customer must ensure that the e-mails sent by the Seller can be received under such address. When using spam filters, the Customer must ensure, in particular, that these are configured properly so that the e-mails sent by the Seller or by third parties engaged by the Seller for order handling can be delivered. In doing so, the Seller or the third party engaged by the Seller for order handling shall create the e-mails such that they are not objectively suitable by their external appearance, in particular their text pattern profile, for purporting a spam message.
3) Subject of the Contract
3.1 The Seller shall provide the Customer with Goods. The Seller shall render services only as ancillary service to contracts on the delivery of Goods. The agreed nature of the service shall prevail. When rendering services, the Seller shall make use, at the Sellers’ option, of its employees, subcontractors or other agents.
3.2 For a contract on the delivery of non-digital Goods, the Seller’s service shall be based on the description indicated in the Seller’s Online Shop or respective Marketplace. Reference is made to the regulations on the retention of title under cl. 10. For a contract on the delivery of software (hereinafter “Software Purchase”), the Seller shall owe the permanent transfer of the software specified in the licence certificate. The Seller shall owe the transfer of one item of the software on a suitable data carrier, such as a CD-ROM, Blu-ray disc or USB stick, as well as the transfer of a printed or downloadable version of the associated user documentation. Before the purchase price is paid in full under cl. 8, any and all data carriers as well as the user documentation handed over shall be subject to the Seller’s retention of title. The respective product description in the Seller’s Online Shop or respective Marketplace shall prevail for the nature of the software. The Seller shall further owe the granting of rights under cl. 4.
3.3 For a contract on the delivery of digital Goods, the Seller shall owe
- a) for a contract on the delivery of software (hereinafter “Software Purchase”), the permanent transfer of the software specified in the licence certificate in object code. The Seller shall owe the demonstration of a possibility for downloading the software as well as the transfer of a printed or downloadable version of the associated user documentation. Before the purchase price is paid in full under cl. 8, the user documentation handed over shall be subject to the Seller’s retention of title. The respective product description in the Seller’s Online Shop or resolution Marketplace shall define the condition of the software. The Seller shall further owe the granting of rights under cl. 4.
- b) for a contract on the temporary provision of software (hereinafter “Software Leasing”), the temporary provision of the software specified in the licence certificate in object code. The Seller shall owe the demonstration of a possibility for downloading the software as well as the transfer of a printed or downloadable version of the associated user documentation. Before the purchase price is paid in full under cl. 8, the user documentation handed over shall be subject to the Seller’s retention of title. The respective product description in the Seller’s Online Shop or respective Marketplace shall define the condition of the software. The Seller shall further owe the granting of rights under cl. 5.
3.5 The Seller shall owe services exclusively as contractual or post-contractual ancillary service to the aforementioned primary obligations and only upon separate consultation with the Customer.
3.6 The delivery of the respective contract object shall be governed by cl. 9.
3.7 If the Seller is prevented or completely excluded from performing its contractual services since employees, documents, data or devices of the Customer are not available in a reasonable or only in an unsatisfactory manner or the Customer fails to meet the Customer’s duty of cooperation, including compliance with dates, by wilful intent or negligence, the Seller shall be entitled to charge the resulting additional expenditure to the Customer.
3.8 If the Customer is entrepreneur, timely and correct self-delivery shall remain reserved if the Seller is not responsible for any untimely and incorrect self-delivery.
4) Granting of Rights for a Contract on the Delivery of Software
4.1 This cl. 4 shall exclusively apply to contracts on the purchase of software under cl. 3.2 as well as 3.3 a).
4.2 Upon full payment of the purchase price under cl. 8, the Customer shall obtain a non-exclusive, permanent right to use the Goods to the extent granted in the contract. The Seller may also provisionally permit use of the Goods before such date. The Goods may only be used simultaneously by the maximum number of natural persons that equals the Goods acquired by the Customer. The permissible use shall comprise the installation of the software, the loading into the RAM as well as the authorised use by the Customer. The Customer shall have no right to lease or sub-licence, publicly reproduce or make publicly available by wire or wireless means the acquired Goods or to provide them to third parties free of charge or against a fee. Cl. 4.5 shall remain unaffected.
4.3 The Customer shall be entitled to create a backup copy of the software if this is necessary to ensure future use.
4.4 The Customer shall be entitled to decompile or reproduce the software only to the extent that this is provided for by law. This shall apply only under the condition, however, that upon request the Seller failed to provide the Customer with the information required to that end within a reasonable period of time.
4.5 The Customer shall be entitled to permanently transfer the acquired copy of the software to a third party including handing over the documentation. In this case, the Customer shall completely cease using the software, shall remove any and all installed copies of the software from the Customer’s computers and shall delete or hand over to the Seller any and all copies existing on other data carriers, unless the Customer is bound by law to a longer storage. At the Seller’s request, the Customer shall confirm full implementation of the aforementioned measures to the Seller in writing or, where appropriate, shall state the reasons for any longer retention to the Seller. Furthermore, the Customer shall expressly agree with the third party compliance with the scope of the granted rights under this cl. 4. Any splitting of acquired volume packages shall not be permissible.
4.6 If the Customer uses the software to any extent exceeding the right of use acquired with the Goods in terms of quality (regarding the type of permitted use) or quantity (regarding the number of users), the Customer shall without undue delay acquire the further Goods required for a permitted use. Otherwise, the Seller will assert the rights entitled to the Seller.
4.7 Copyright notices, serial numbers as well as other features serving programme identification must be neither removed from the software nor altered.
5) Granting of Rights for Contract on the Temporary Provision of Software
5.1 This cl. 5 shall exclusively apply to contracts on the temporary provision of software under cl. 3.3 b).
5.2 Upon full payment of the purchase price under cl. 8, the Customer shall obtain the non-exclusive, non-transferable and non-sub-licensable right to use the Goods temporarily during the term of the contract to the extent granted in the contract and the licence certificate. The Seller may also provisionally permit use of the Goods before such date. The duration of the temporary term of the contract shall be governed by the respective details in the Seller’s Online Shop or respective Marketplace or the selection to be made by the Customer for the term prior to the conclusion of the contract. The permissible use shall comprise the installation of the software, the loading into the RAM as well as the authorised use by the Customer. The Customer shall have no right to lease or sub-licence, publicly reproduce or make publicly available by wire or wireless means the acquired Goods or to provide them to third parties free of charge or against a fee.
5.3 The Customer shall be entitled to create a backup copy of the software if this is necessary to ensure future use.
5.4 The Customer shall be entitled to decompile or reproduce the software only to the extent that this is provided for by law. This shall apply only under the condition, however, that upon request the Seller failed to provide the Customer with the information required to that end within a reasonable period of time.
5.5 The Customer shall not be entitled to reproduce the software beyond the cases stated in cl. 5.1 to 5.3.
5.6 The Customer shall not be entitled to transfer to third parties any copy of the software provided to him or any copies created by him. In particular, the Customer shall not be permitted to resell, lend, lease, sub-licence, publicly reproduce or make available the software.
5.7 If the Customer violates any of the above provisions, any and all rights of use granted hereunder shall become immediately ineffective and shall automatically fall back to the Seller. In this case, the Customer must completely cease using the software without undue delay, delete any and all software copies installed on his systems as well as delete or hand over to the Seller any created backup copy/copies.
6) Customer’s Obligations
6.1 Unless otherwise provided for in the contract, any licence certificate or any user documentation, the Customer is obligated to take appropriate measures to secure the Goods against access by unauthorised third parties, especially to keep any and all copies of digital contents at a protected location.
6.2 The Customer must name a point of contact whose declarations, to the extent they serve contract handling, and actions shall be binding for the Customer. This regulation shall not apply to consumers.
6.3 The Customer must inform the Seller before and during the contract handling about all circumstances and processes relevant for the handling of a contract that are necessary and essential for the preparation and implementation of the contract. This regulation shall not apply to consumers.
6.4 The Customer shall be obligated to assist the Seller in the contract implementation to the best of the Customer’s knowledge and belief and to lay all foundations necessary for the proper contract implementation. The Customer undertakes, in particular, to provide the Seller with any document, data and information in the necessary form that is required to meet contractual obligations. This shall also include that the Customer informs employees in due time about forthcoming deliveries or other service provisions of the Seller.
7) Right of Revocation
7.1 Consumers have a right of revocation.
7.2 Detailed information on the right of revocation follows from the Seller’s Revocation Instruction retrievable at https://www.lizengo.co.uk/withdrawal or on the Seller’s respective Marketplace.
8) Prices and Payment Terms
8.1 Unless otherwise provided for in the Seller’s product description, the stated prices shall be total prices including the statutory VAT. Any additionally arising delivery and shipping costs shall be separately stated in the respective product description.
8.2 For deliveries to countries outside the European Union, further costs may arise in a given case for which the Seller shall not be responsible and which must be borne by the Customer. This shall include, e.g. costs for the money transfer by credit institutions (e.g. remittance fees, exchange rate fees) or import-law duties or taxes (e.g. customs). Such costs may arise in relation to the money transfer even if the delivery is not made to a country outside the European Union, but the Customer effects the payment from a country outside the European Union.
8.3 The payment option/s shall be communicated to the Customer in the Seller’s Online Shop or respective Marketplace.
8.4 If cash in advance via bank transfer has been agreed, the payment shall be due immediately after contract conclusion, unless the parties agreed any later due date.
8.5 For payment via one of the payment methods offered by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter “PayPal”), the payment via PayPal shall be handled under application of the PayPal User Agreement, accessible at https://www.paypal.com/us/webapps/mpp/ua/useragreement-full, or, if the Customer does not have a pap account, under application of the Terms for Payments without a PayPal account, accessible at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full?locale.x=en_DE.
8.6 Where the “SOFORT transfer” payment method is selected, the payment shall be handled via the payment service provider SOFORT GmbH, Theresienhöhe 12, 80339 Munich (hereinafter “SOFORT”). In order to pay an invoice amount via SOFORT transfer, the Customer must have an online banking account with PIN/TAN procedure activated for the participation in SOFORT transfer, accordingly legitimise in the payment process and confirm the payment order towards SOFORT. The payment transaction shall be implemented by SOFORT immediately thereafter by debiting the Customer’s bank account. The Customer may retrieve detailed information on the SOFORT transfer payment method on the Internet at https://www.sofort.com/ger-DE/kaeufer/su/so-funktioniert-sofort-ueberweisung/.
8.7 Where the purchase with invoice payment method is selected, the purchase price shall become due after the Goods were delivered and invoiced. In this case, the purchase price must be paid without deduction within 7 (seven) days from receipt of the invoice, unless agreed otherwise. The default regulation of section 286 (3) BGB shall remain unaffected. The Seller reserves the right to offer the purchase with invoice payment method only up to a certain order volume and to refuse such payment method if the indicated order volume is exceeded. In this case, the Seller shall point the Customer to a corresponding payment restriction in the Seller’s payment information in the Seller’s Online Shop or respective Marketplace.
8.8 Where the SEPA direct debit payment method is selected, the invoice amount shall be due for payment after granting of a SEPA direct debit mandate, but not before expiry of the deadline for the advance information. For a purchase via a Marketplace of the Seller, the direct debit shall be collected upon submission of the purchase order. For a purchase via the Seller’s Online Shop, the direct debit shall be collected if the ordered Goods leave the Seller’s warehouse and a download link was communicated or a product key was sent to the Customer by e-mail, whereas the respective sending of the notification or e-mail by the Seller is decisive, however, not prior to expiry of the deadline for the advance information. Advance information (“Pre-Notification”) shall be any notification (e.g. invoice, policy, contract) by the Seller to the Customer to announce debiting via SEPA direct debit. If the direct debit is not collected due to insufficient funds in the account or if the Customer objects to the debit although not being entitled to do so, the Customer must bear the fees incurred by the respective financial institution due to the chargeback, where the Customer is responsible.
8.9 Where the credit card payment method is selected, the account shall be debited upon completion of the order.
8.10 Where the “Amazon Pay” payment method is selected, the payment shall be effected via the payment service provider Amazon Payments Europe s.c.a., 38 avenue J.F. Kennedy, L-1855 Luxemburg (hereinafter “Amazon Pay”), using the payment information stored in the Customer’s Amazon account, under application of the terms for payments via Amazon Pay, accessible at https://pay.amazon.co.uk/help/B63Y8N45FK4VXH2.
8.11 For payment via one of the payment methods offered by the payment service provider Klarna Bank AB (publ), Sveavägen 46, 111 34 Stockholm, Sweden (hereinafter “Klarna”), the payment shall each be made to Klarna under the following terms:
Invoice: the payment deadline shall be 14 days from shipping of the Goods. The invoice terms are accessible at https://cdn.klarna.com/1.0/shared/content/legal/terms/EID/en_us/invoice?fee%3D0.
Hire-purchase: using Klarna’s financing service, the Customer’s purchase may be paid flexibly in monthly minimum instalments of 1/24 of the total amount (but at least EUR 6.95) or under the terms otherwise stated in the ordering process. The instalment payment shall each be due by the end of the month after Klarna’s provision of a monthly invoice. Further information on the hire-purchase including the General Terms & Conditions and the European standard information for consumer credits are accessible at https://cdn.klarna.com/1.0/shared/content/legal/terms/EID/en_us/account.
Immediate transfer: the Customer’s account shall be debited immediately after submission of the purchase order.
Use of the invoice and hire-purchase payment methods shall be subject to a positive credit rating. Further information and Klarna’s Services Terms are accessible at https://cdn.klarna.com/1.0/shared/content/legal/terms/0/en_us/user.
8.12 Setting off claims of the Seller against counterclaims of the Customer shall be excluded, unless the counterclaim was acknowledged by the Seller or has been legally established by final judgement. The purchaser’s right of retention shall likewise be limited to such counterclaims.
8.13 In case of default of payment, the Seller shall be entitled to charge default interest in the amount of 9% above the respective applicable basic interest rate to the Customer. In case of untimely payment despite overdue notice, the Seller shall be entitled to request from the Customer the expenses for overdue notice and collection which are required for adequate legal prosecution by the collection agencies and lawyers engaged by the Seller. These shall be governed for collection agencies by the legal calculation rates of the collection agencies and for lawyers by the Lawyers’ Remuneration Act. For the case that the Seller personally pursues the dunning process, the Customer undertakes to pay an amount of EUR 1.50.- for every sent overdue notice. This shall not apply to an overdue notice establishing default. The Customer shall reserve the right to demonstrate lesser damages of the Seller. This regulation shall not apply to consumers.
8.14 For customers not domiciled in the Federal Republic of Germany, purchase at the net price shall be possible if they already indicate their valid value-added tax identification number on the purchase order. A value-added tax identification number communicated after sending of the purchase order shall not be taken into account.
9) Delivery & Shipping Terms
9.1 Unless agreed otherwise, Goods shall be delivered by the shipping to the delivery address indicated by the Customer. The delivery address indicated in the Seller’s purchase process shall prevail for the handling of the transaction.
9.2 If the transport company sends the shipped Goods back to the Seller since delivery to the Customer was impossible, the Customer shall bear the costs for the unsuccessful shipping. This shall not apply if the Customer effectively exercises the Customer's right of revocation, is not responsible for the circumstance causing the impossibility of delivery or was temporarily prevented from accepting the offered performance, unless the Seller announced the performance to the Customer reasonably in advance.
9.3 Self-collection shall not be possible for logistic reasons.
9.4 Digital contents shall be provided to the Customer in electronic form as download by communicating a download link. Product keys shall be sent to the Customer by e-mail.
10) Retention of Title
10.1 Title to delivered non-digital Goods shall remain with the Seller until the Seller’s purchase price claim has been paid in full (retention of title).
10.2 The Customer shall be obliged to safekeep the non-digital Goods for the Seller and to treat them with care. The Customer shall make clear that the Seller has title to these by storing them appropriately, for example by separating them from other goods in stock. This regulation shall not apply towards consumers.
10.3 In case of attachments or other interventions by third parties, the Customer must notify the Seller in writing without delay.
10.4 The Customer shall be entitled to resell non-digital Goods in the ordinary course of business, but neither to pledge nor to assign them by way of security. The Customer shall already now assign to the Seller all claims in the amount of the final invoice amount (including VAT) of the Seller’s claims which accrue to the Customer from the resale to buyers or other third parties. The assignment shall serve to secure the relevant claim to the same extent as the retention of title u under cl. 10.1 of this term. The Customer shall remain authorised to collect these claims even after any assignment. The Seller shall be entitled, however, to personally collect the claims if the Customer fails to meet the payment obligations, comes into default of payment, an application for initiation of insolvency proceedings is filed or the Customer ceases payments. In these cases, the Seller may revoke the collection authorisation. Moreover, the Seller may require the Customer to notify the Seller of the assigned claims and their debtors without delay and to provide the Seller with a written declaration of assignment and all details as well as documents required to collect the claim. This regulation shall not apply to consumers.
10.5 If the non-digital Goods delivered by the Seller are combined or mixed with other movables in such a way that they become integral parts of a uniform item, the Customer shall transfer pro rata co-title to the uniform item to the Seller. The Customer shall already now assign to the Seller all claims in the amount of the final invoice amount (including VAT) of the Seller’s claims which accrue to the Customer from the resale of objects to which co-title is due to the Seller; the Seller shall accept such assignment. The regulations in cl. 10.4 sentence 3 et seqq. shall apply mutatis mutandis. This regulation shall not apply to consumers.
10.6 If the Customer uses the non-digital Goods delivered by the Seller in such a way that they become part of a new item, causing the Seller’s title to be definitely lost, the Seller’s title shall continue with a pro rata proportion to the manufactured product. The Customer shall already now assign to the Seller all claims in the amount of the final invoice amount (including VAT) of the Seller’s claims which accrue to the Customer from the resale of the product to buyers or other third parties. The regulations in cl. 10.4 sentence 3 et seqq. shall apply mutatis mutandis. This regulation shall not apply to consumers.
10.7 If the securities due to the Seller exceed the secured claims by more than 20%, the Seller shall be obligated to release, at the Seller’s option, the securities exceeding the aforementioned limit at the Customer’s request.
11) Warranty for Contracts under Cl. 3.2, 3.3 a) and 3.3 c)
11.1 The regulations of this cl. 11 shall apply to contracts under cl. 3.2, 3.3 a) and 3.3 c).
11.2 Claims for material defects against the Seller shall become statute-barred one year after transfer of risk where these are newly manufactured items or performances of work. This shall not apply if longer deadlines are provided by law under section 438 (1) (2.) (buildings and things used for buildings), section 445b (1) (recourse claim) and section 634a (1) (2.) (construction defects) BGB. This regulation shall not apply to consumers.
11.3 For any delivery of used Goods, any rights due to material defects shall be excluded - subject to legal regulations and other agreements. This regulation shall not apply to consumers.
11.4 Any and all details on the Goods, whether or not expressly agreed in writing, shall be a statement of condition and not guarantees, warranted characteristics, contractually envisaged uses or the like. Obvious inaccuracies (typing, arithmetical, formal errors, etc.) in notes, protocols, operating instructions, calculations, prospectuses, in the Seller’s Online Shop, etc. may be rectified by the Seller at any time. Any entitlement to remedy of such obvious defects shall be excluded.
11.5 Towards merchants, the legal duties to inspect and to give notice of defects under section 377 HGB (German Commercial Code) shall apply to the Seller’s deliveries in any case. If a delivery is directly made to a consumer on behalf of an intermediary, the commercial-law obligation to give notice of defects shall apply as well and without limitation. This regulation shall not apply to consumers.
11.6 If the Customer rejects the Seller’s delivery for any reason other than a major defect causing the use to be severely limited or impossible despite the Seller having declared readiness to perform, the Customer shall come into default of acceptance. Acceptance of the delivery must not be refused due to minor defects.
11.7 The warranty shall not include defects attributable to improper operation, system components modified contrary to the contractual basis, use of inappropriate organisational means, utilisation in a hardware or software environment not meeting the requirements specified in the licence certificate, unusual operating conditions or system interventions by the Customer or third parties. If Goods are used in conjunction with devices of third parties, warranty for functional and performance defects shall exist only if such defects arise even without such a conjunction or if the compatibility with these objects is part of the contractually agreed condition.
11.8 If a delivery is defective, the Seller may, at the Seller’s option, perform subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement delivery). In the latter case, the Customer shall be obligated to grant the defective Goods back at the Seller’s request according to the statutory provisions. If the Customer is a consumer, the preceding sentence shall apply with the proviso that uses are not to be returned or to be replaced by their value. The Customer must give the Seller time and opportunity to perform subsequent performance, in particular to rectification.
11.9 The expenses required for inspection and subsequent performance, in particular transport, workmen’s travel, work and materials costs, shall be borne by the Seller according to the statutory provisions if a defect actually exists. If the Customer requests remedy of defects without justification, the Seller shall be entitled to demand reimbursement of subsequent performance costs, unless the Customer is not responsible for the inaccurate notice of defects. If subsequent performance fails, the Seller definitely and seriously refuses subsequent performance (also under section 439 (4) BGB), subsequent performance is unreasonable for the Customer or a case of section 323 (2) BGB exists, the Customer may withdraw from the contract or reduce the consideration without prejudice to any damages claims.
11.10 Claims and rights of the Customer for defects shall not exist for only minor deviation from the agreed condition, for only minor impairment of usability, for natural wear or damage to the extent that these are attributable to incorrect or negligent handling or storage, excessive stress, inadequate operating equipment or special external influences not envisaged under the contract. If subsequent performance fails, entitling the Customer, on the one hand, to continue requesting subsequent performance or, on the other hand, to assert the statutory alternative rights, the Seller may require the Customer to exercise the Customer’s rights within a reasonable grace period. The Customer must notify the Seller of the decision in text form (e.g. e-mail, fax or letter). Receipt of the Customer’s declaration by the Seller shall be decisive for compliance with the grace period. If the Customer fails to exercise the rights in due time, the Customer may assert these, in particular the rights to withdrawal or damages in lieu of performance, only if a new reasonable deadline for subsequent performance determined by the Customer expires to no avail. This regulation shall not apply to consumers.
11.11 Recourse claims of the Customer against the Seller under section 445a BGB shall exist only to the extent that the Customer and the Customer’s buyer had not made any agreements beyond the legal claims for defects. This regulation shall not apply to consumers.
11.12 The reduced statute of limitations and the exclusion of liability under this cl. 11 shall not apply in cases of injury to life, limb or health by wilful intent or negligence, to a breach of duty by the Seller by wilful intent or gross negligence, to fraudulent concealment of a defect, to a relevant guarantee of condition or to claims under the German Product Liability Act.
11.13 To the extent that the Seller delivers updates, upgrades, new programme versions or other new contents to the initial contract object hereunder, this cl. 11 shall apply mutatis mutandis.
11.14 Where legal defects exist, the provisions in this cl. 11 shall apply mutatis mutandis.
12) Warranty for Contracts under Cl. 3.3 b)
12.1 The regulations of this cl. 12 shall apply to contracts under cl. 3.3 b).
12.2 The Customer shall be entitled to the legal rights for material defects. The Customer shall be obligated to notify the Seller of material defects without delay.
12.3 The Customer’s right to terminate without notice for non-granting of use in conformity with contract under section 543 (2) s. 1 (1.) BGB shall be excluded. This shall apply neither to a defect maliciously concealed by the Seller nor to untimely delivery to the Customer if the Seller is responsible for the delay in delivery.
12.4 Claims and rights of the Customer for defects shall not exist if the Customer fails to use the software as intended or misuses the software, modifies or alters the software without the Seller’s prior written consent or if problems or errors are based on the software being utilised in a hardware or software environment not meeting the requirements specified in the licence certificate, unless the Customer demonstrates that the defect is attributable to the software.
12.5 Claims and rights of the Customer for defects shall not exist for only minor deviation from the agreed condition, for only minor impairment of usability, for natural wear or damage to the extent that these are attributable to incorrect or negligent handling or storage, excessive stress, inadequate operating equipment or special external influences not envisaged under the contract.
12.6 The exclusion of liability under this cl. 12 shall not apply in cases of injury to life, limb or health by wilful intent or negligence, to a breach of duty by the Seller by wilful intent or gross negligence, to fraudulent concealment of a defect, to a relevant guarantee of condition or to claims under the Product Liability Act.
12.7 To the extent that the Seller delivers updates, upgrades, new programme versions or other new contents to the initial contract object hereunder, this cl. 12 shall apply mutatis mutandis.
12.8 Where legal defects exist, the provisions in this cl. 12 shall apply mutatis mutandis.
13) “100% Money-Back Guarantee” Guarantee Terms
The guarantee shall be limited to 3 years from the invoice date. This shall not include products with a limited term. The guarantee for such products shall be limited to the term of the product. On production of proof that the product was acquired from the Seller and on production of a written confirmation that the product will not continue to be used and was not forwarded to third parties either, 100% of the paid price shall be reimbursed without giving reasons. The repayment shall be effected 14 days after receipt of the proof and confirmation by the Seller.
14) Liability for Other Breaches of Duty
14.1 For breaches of duty which are not material or legal defects under cl. 11 and 12, the Seller shall be liable for both wilful and grossly negligent conduct by executive bodies and agents and, regardless of the degree of fault, for damage from injury to life, limb and health.
14.2 The Seller shall further be liable for simple negligence by executive bodies and agents in case of impossibility, default of performance, non-compliance with a guarantee or violation of any other essential contractual obligation. Essential contractual obligations shall be such whose fulfilment is essential for ensuring due and proper implementation of the contract in the first place and on compliance with which the contracting partner may regularly rely. In such cases, the Seller’s liability shall be limited to contract-typical damage with which the Seller reasonably had to anticipate upon conclusion of the contract.
14.3 Any liability of the Seller beyond the liability under cl. 12.1 and 12.2 for any legal reason whatsoever shall be excluded. This shall apply, in particular, to any and all claims for the violation of contractual obligations and to tort liability, but not to claims for default upon conclusion of the contract.
14.4 The Seller shall not assume any liability for any loss of data upon verification, any necessary repair measures or other services. The Customer must ensure that the data existing on the respective devices or data memories is backed up and that no sensitive data is located on these.
14.5 Any limitation of liability agreed with the Customer shall also apply for the benefit of the Seller’s executive bodies and agents.
14.6 Claims under the Product Liability Act shall remain unaffected.
15) Redemption of Campaign Vouchers
15.1 Vouchers with a certain validity period which are issued by the Seller free of charge in advertising campaigns and which cannot be acquired by the Customer by purchase (hereinafter “Campaign Vouchers”) may be redeemed only in the Seller’s Online Shop and only during the indicated period.
15.2 Individual products may be excluded from the voucher campaign where a corresponding restriction follows from the content of the Campaign Voucher.
15.3 Campaign Vouchers may be redeemed only before completion of the ordering process. Any post-offsetting shall not be possible.
15.4 Only one Campaign Voucher may be redeemed for each order.
15.5 The value of the Goods must at least be equal to the amount of the Campaign Voucher. The Seller shall not reimburse any remaining credit.
15.6 If the value of the Campaign Voucher is not sufficient to cover the order, one of the remaining payment methods offered by the Seller may be chosen to settle the difference amount.
15.7 The credit of a Campaign Voucher shall neither be paid out in cash nor bear interest.
15.8 The Campaign Voucher shall not be reimbursed if the Customer returns under the Customer’s legal right of revocation the goods paid in whole or in part with the Campaign Voucher.
15.9 The Campaign Voucher shall be transferable. The Seller may perform with discharging effect to the respective holder redeeming the Campaign Voucher in the Seller’s Online Shop. This shall not apply if the Seller has knowledge or grossly negligent ignorance of the respective holder’s non-entitlement, incapacity to contract or lacking representation entitlement.
16) Naming as Reference
If the Customer is entrepreneur, the Customer consents to be named by the Seller as reference on the Seller’s website, in the Seller’s social media profiles (such as Twitter, LinkedIn, Xing) and in own publications, stating the Customer’s company and using the Customer’s trademark related to such company. Such consent may be revoked at any time with effect for the future by declaration towards the Seller.
17) Final Provisions
17.1 The Customer shall be entitled to assign rights and claims from the contractual relationship to third parties only with the Seller’s prior written consent. Section 354a HGB shall remain unaffected; section 354a HGB shall not apply to consumers.
17.2 German law shall apply exclusively, excluding the UN Sales Law as well as the referral by private international and procedural law. This choice of law shall apply to consumers only to the extent that no broader protection is granted by mandatory provisions of the laws of the country in which the consumer has his or her habitual residence.
17.3 Place of exclusive jurisdiction for any and all disputes from and in connection with contracts governed by these GTC shall be the Seller’s headquarter, with the Seller being entitled, however, to file claims against the Customer at every jurisdiction provided by law. This regulation shall not apply to consumers.
17.4 The EU Commission provides a platform for online dispute resolution on the Internet under the following link:
https://ec.europa.eu/consumers/odr. This platform serves as a contact point for out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved. The Seller shall not be obliged but is basically willing to take part in dispute resolution proceedings before a consumer conciliation body. This shall not affect, however, the remaining regulations of this cl. 17.