General Terms and Conditions for Sales Contracts Entered into via the Platform scomponents-j.net
by and between
Intechcore GmbH Software / IT-Services, Keltenring 17, 82041 Oberhaching, Germany, phone: +49 89 4554 6533, fax: +49 89 4554 6535, e-mail: sales@scomponents-j.net, registered with the commercial register (Handelsregister) of the Munich Local Court (Amtsgericht) under company number HRB 174823, represented by its managing director Mr. Vasily Smeltsov, VAT ID: DE260980745
– hereinafter the “Provider” or “we” –
and
the customer named in section 2 hereof – hereinafter the “Customer” or “you”-
Section 1 Scope of application, definitions
(1) The following general terms and conditions as applicable at the time of the order apply exclusively to the business relationship between the Provider and the Customer. Any deviating general terms and conditions of the Customer are not accepted unless the Provider expressly consents to their applicability in writing.
(2) The Provider’s offer is exclusively addressed to entrepreneurs, but a purchase by consumers is also possible.
(3) The Customer is a consumer insofar as the purpose of the ordered deliveries and services cannot predominantly be attributed to his or her commercial or self-employed professional activity. In contrast, entrepreneurs are all individuals or legal entities or incorporated partnerships who act within their business or self-employed activity when entering into the contract.
Section 2 Conclusion of contract
(1) The Customer can select various software products from the Providers’ product range and collect them in a so-called shopping cart by clicking “Add to shopping cart”. By clicking “Commit to buy”, the Customer places a binding request to purchase the products added to the shopping cart. The Customer may change and review the details at any time before sending the order. The request can, however, only be made and submitted if the Customer accepts these general terms and conditions of contract and thereby includes them into his or her request by checking the box “I accept the general terms and conditions”. In addition, the Customer must take notice of the privacy policy. The Customer has to check the box for having taking notice of the privacy policy when placing the order to confirm this. If the Customer is a consumer, he or she has a right of withdrawal. Accordingly, the Customer must select the corresponding option by checking the appropriate box.
(2) The Provider then sends an automatic acknowledgement of receipt to the Customer by e-mail, which lists the Customer’s order and which can be printed by the Customer via the “Print” function. The automatic acknowledgement of receipt only documents that the Provider has received the Customer’s order. It does not constitute an acceptance of the request. The contract only comes into force upon submission of the Provider’s declaration of acceptance, which is sent by separate e-mail (order confirmation). The Provider will send the text of the contract (consisting of the order, the general terms and conditions and the order confirmation, as well as the withdrawal and privacy policy) to the Customer on a durable medium (e-mail or hard copy) in the acknowledgement of receipt or the order confirmation, at the latest upon the delivery of the product (contract confirmation). The contract text will be stored in compliance with data protection laws.
(3) The contract is concluded in the English language.
Section 3 Subject matter of contract
(1) The subject matter of the respective customer order is the permanent transfer of the computer programs specified in the acknowledgement of receipt and the order confirmation in object code, including the corresponding user documentation (contractual software) and the granting of the rights of use described in section 4. The hardware and/or software environment within which the contractual software shall be used is described on the website and in the accompanying documentation.
(2) The characteristics and functionality of the contractual software are finally set forth in the order confirmation and the product description on the Provider’s platform. The information provided in this respect are to be understood as service descriptions and not as guarantees. A guarantee is only provided if it has been expressly designated as such.
(3) Installation and configuration services are not subject to this contract.
Section 4 Granting of rights
(1) Upon full payment of the fee according to the order confirmation, the Customer is granted a non-exclusive right to use the contractual software for an indefinite period of time within the scope specified in the order confirmation. The contractual software must only be used simultaneously by the maximum number of individuals which corresponds to the licences acquired by the Customer. The permitted use includes the installation of the contractual software, loading into the working memory, as well as the intended use by the Customer. The number of licences as well as the kind and scope of use are otherwise set forth in the order confirmation. The Customer shall, under no circumstances, have the right to rent or otherwise sub-licence the acquired contractual software, to publicly reproduce or give access to it by wire or wireless means or to make it available to third parties against payment or free of charge, e.g. by way of application service providing or as software as a service.
(2) The Customer shall be entitled to make a backup copy if required for securing future use. The Customer shall visibly mark the created backup copy with “backup copy” and a copyright notice of the producer.
(3) The Customer shall only be entitled to decompile and reproduce the contractual software to the extent provided for by law. However, this shall only apply if the seller has not submitted the information required in this respect to the Customer at his or her request within a reasonable period of time.
(4) Should the use of the contractual software by the Customer exceed the acquired rights of use in terms of quality (with regard to the kind of the permitted use) or quantity (with regard to the number of the acquired licences), the Customer will promptly acquire the required licences for permitted use. If the Customer fails to do so, the seller will enforce his rights.
(5) Author notes, serial numbers and other features for identifying the program must not be removed from the contractual software or changed.
Section 5 Delivery
The Provider makes the contractual software and the user documentation available in a separate download area. With the order confirmation, the Customer receives a link to this area, as well as the necessary access data and licence key. The Customer can log in to the customer area using these data. After having entered the access data, the Customer can copy the software to his or her terminal device by downloading it. Then, he or she can activate the software with the licence key.
Section 6 Prices
All prices stated on the Provider’s website are inclusive of the applicable statutory value added tax.
Section 7 Terms of payment
(1) The Customer can make payment via a third-party provider (currently Paypal, Stripe and credit card).
(2) Payments are due upon provision of the software for download and notification of the access data to the Customer and must be made within 14 days of the invoice date.
(3) If a consumer is involved in the transaction, the default interest shall be five percentage points above the basic rate of interest applicable at that time. Otherwise, the default interest amounts to nine percentage points above the basic rate of interest applicable at that time.
(4) The Customer’s obligation to pay default interest does not exclude the Provider’s right to assert further claims for damage caused by default.
Section 8 Warranty for defects of quality, guarantee
(1) The Provider warrants the agreed quality and that the Customer can use the contractual software without violating any third-party rights. The warranty for defects of quality does not apply to any defects based on the fact that the contractual software is used in a hardware and software environment which does not meet the requirements specified in the order confirmation or to changes and modifications of the software made by the Customer without being entitled to do so by law, this contract or due to the Provider’s prior written consent.
(2) If the Customer is an entrepreneur, he or she has to test the contractual software as to obvious defects without undue delay after receipt and promptly notify the Provider of the defects, if any, since warranty for these defects is excluded otherwise. This also applies if such defects become apparent at a later point in time. Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB) shall apply.
(3) If the Customer is an entrepreneur, the Provider shall have a right of supplementary performance in case of a defect of quality, i.e., at his own discretion, either to remove the defect (rectification of defects) or provide replacement. The Customer shall, if necessary, adopt a new version of the software within the scope of the replacement, unless this leads to unreasonable impairments. In the event of defects of title, the Provider shall, at its own discretion, provide the Customer with a legally unchallengeable possibility to use the contractual software or to modify it in such a way that no rights of third parties are infringed any more.
(4) Place of supplementary performance is the Provider’s place of business. Supplementary performance may be provided by transmission using means of telecommunication as long as the transmission by means of telecommunication is not unreasonable for the Customer, for example, for reasons of IT security.
The Provider also fulfils his duty to rectify the defects by providing updates with an automatic installation routine for download on his website and by offering the Customer telephone support to solve any installation problems that may arise.
(5) The Customer’s right to either reduce the purchase price or to rescind the contract if the rectification of defects or replacement failed twice shall remain unaffected. No right of rescission exists in case of insignificant defects.
(6) If the Customer is a consumer, the statutory warranty regulations apply without any limitations.
(7) Except for claims for damages, warranty claims based on defects of quality shall become time-barred after two years or after one year if no consumer is involved in the transaction. The statute of limitations commences after notification and activation of the access data for the download area.
(8) Additional warranties regarding the products delivered by the Provider shall only apply if expressly made in the order confirmation relating to the respective item.
(9) The provisions of the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) shall remain unaffected.
Section 9 Liability
(1) Any claims for damages on the part of the Customer shall be excluded, except for claims for damages on the part of the Customer based on an injury to life, body or health or a breach of material contractual duties and except for any liability for other damage based on the intentional or grossly negligent breach of duties on the part of the Provider, his legal representatives or vicarious agents. Material contractual duties are duties which must be performed in order to achieve the objective of the contract.
(2) In case of a breach of material contractual duties, the Provider shall only be liable for the contract-typical, foreseeable damage if caused by simple negligence unless the Customer’s claims for damages are based on an injury to life, body or health.
(3) Any limitations set forth in para. (1) and (2) shall also apply in favour of the legal representatives and vicarious agents of the Provider if claims are asserted directly against them.
Section 10 Protective measures, audit right
(1) The Customer shall protect the contractual software and the online access data, if any, against access by unauthorized third parties by taking suitable measures. In particular, any and all copies of the contractual software and the access data must be kept in a safe place.
(2) The Customer shall allow the Provider at his request to verify the proper use of the contractual software, particularly as to whether the Customer uses the program in terms of quality and quantity within the scope of the acquired licence. In this respect, the Customer shall give the seller information, allow the Provider to inspect the relevant documents and records and to check the used hardware and software environment.
Section 11 Miscellaneous
(1) The Customer is only entitled to a set-off with undisputed or final claims.
(2) Any amendments and supplements to the contractual relationship and any notices relating thereto must be made in written form. This shall also apply to any amendment or revocation of this clause. Electronic documents submitted in text form do not comply with the written form requirement.
(3) General terms and conditions of the Customer shall not apply.
(4) The parties are aware that the contractual software may be subject to export and import restrictions. In particular, there may be obligations to obtain a permit or the use of the software or associated technologies may be subject to restrictions abroad. The Customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union, the United States of America, as well as all other relevant provisions. The performance of the contract by the Provider is subject to the proviso that there are no obstacles to performance due to national and international regulations of export and import law and that there are no other statutory provisions to the contrary.
(5) Any contracts between the Provider and the Customer are subject to the laws of the Federal Republic of Germany without giving effect to the UN Sales Convention. The statutory provisions to limit the choice of law and to apply mandatory provisions, in particular of the country in which the Customer as a consumer has his or her habitual residence, shall remain unaffected.
(6) Should individual provisions be invalid, the validity of the remaining provisions shall not be affected thereby. In lieu of the invalid provision, the contracting parties shall agree upon such valid provision which most closely corresponds to the economic intent of the invalid one.
(7) If the Customer is an entrepreneur, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising under the contractual relationship between the Customer and the Provider shall be the Provider’s place of business. The Provider shall, however, also be entitled to file action at the Customer’s place of general jurisdiction.
Section 12 Withdrawal policy
(1) When concluding a distance selling transaction, consumers generally have a statutory right of withdrawal, about which we inform you in accordance with the legal sample below. Exceptions to the right of withdrawal are governed by para (2). Para. (3) contains a standard withdrawal form.
| Information about the right of withdrawal
Right of withdrawal You are entitled to withdraw from this contract within fourteen days without giving reasons. The withdrawal period is fourteen days after the date of the conclusion of the contract. To exercise your right of withdrawal, please inform us (Intechcore GmbH Software / IT-Services, Keltenring 17, 82041 Oberhaching, Germany, phone: +49 89 4554 6533, fax: +49 89 4554 6535, email: sales@scomponents-j.net) of your decision to withdraw from the contract by submitting an unequivocal declaration (e.g. by letter sent by mail, telefax or e-mail). You may use the attached standard withdrawal form which, however, is not required. To meet the deadline for withdrawal it is sufficient to send the declaration of the exercise of your right of withdrawal before the withdrawal period has expired. Consequences of withdrawal When you withdraw from the contract, we have to refund any payments received from you, including shipping costs (except for additional costs resulting from your selection of another shipping option than the cheaper standard shipment offered by us) without undue delay and not later than fourteen days from the day we received your declaration of withdrawal. We will use the same means of payment you used in the original transaction unless we have expressly agreed upon another means of payment. You will not have to bear any charges due to the refund in any case. |
(2) You have no right of withdrawal in case of contracts on the delivery of sealed audio or video recordings or computer software if their sealing has been removed after delivery.
(3) We inform you about the standard withdrawal form in accordance with the statutory provision as follows:
| Standard withdrawal form
(If you wish to withdraw from the contract, please complete this form and return it to us.) — To [please add name, address and fax number, if any, and e-mail address of the entrepreneur]: (*) Delete as applicable |