§ 1 Basic conditions
1. The following business terms apply to all agreements between G DATA Software AG, Königsallee 178b, 44799 Bochum, Germany – hereinafter referred to as the provider – and the customer, which are concluded via the provider's online shop on www.gdata.de. The inclusion of individual terms by the customer is prohibited, in so far as no other agreement has been made.A consumer in the sense of the following terms is any natural person that concludes a legal transaction for a purpose that cannot be attributed to either commercial or self-employed activity. A business operator is a natural or legal person or legally responsible partnership that is engaged in exercising their commercial or self-employed activity in concluding the agreement.
2. The language of the agreement is German. The text of the agreement shall be stored by the provider. However, such storage is temporary; therefore the customer shall be responsible for printing out or storing copies for their own purposes.
§ 2 Object of the agreement
The object of the agreement is the purchase or lease of goods, especially software. The individual details, specifically the principal characteristics of the goods and the terms of lease can be found in the product description and the full details on the provider's website
§ 3 Concluding the agreement
1. The provider's products are set out under the sales categories of "Private Users" and "Business". The provider only offers goods that can be accessed under the "Business" heading for sale as long as the customer is a natural or legal person or a legally responsible partnership and is engaged in exercising their commercial or self-employed activity in concluding the transaction (business operator) and is using the goods as an end user in his self-employed, commercial or administrative or service-related activity. Conclusion of a sales agreement with consumers is excluded in this regard.
2. The "lease" offer is only directed at consumers. Conclusion of an agreement with business operators via the online shopping system is excluded in this regard.
3. The provider's proposals on the Internet do not represent a binding offer to conclude a sales or lease agreement; rather they are an invitation to submit an order (provider's proposal).The customer can submit his proposition by telephone, in writing, via fax, via email or via the online ordering system.When purchasing via the online shopping system (available for products that are offered under the headings "Private Users" and "Lease"), it should be noted that:The items intended for purchase or lease are placed in the shopping cart. The customer can call up the shopping cart via the appropriate button in the navigation bar and make changes to it at any time. After calling up the order form, personal data and payment and delivery terms are entered. Before submitting the order, the customer has the option of checking all the details again, amending them (also available via the web browser's "Back" button) or cancelling the purchase. On submitting the order via the relevant button, the customer is submitting a binding proposition to the provider.
4. Acceptance of the proposition (and therewith conclusion of the sales or lease agreement) is confirmed in text form (e.g. email), wherein the order is confirmed for the customer. If the customer has not received confirmation of the agreement within three working days, he is no longer bound by the order. Payments already made shall be immediately refunded as necessary in this case.
5. With products that are only offered to customers under the "Business" heading, in accordance with § 3 para. 1 line 2 of the General Terms and Conditions, once the provider has received the specific requirements necessary for configuring the software solution, he shall produce a customised proposal that can be accepted by the customer within the period set out in the proposal.
§ 4 Pricing, delivery and postage costs
The prices set out in the respective proposal and the postage costs provided shall represent final costs. They include all pricing components including any taxes.This does not apply for goods that can be accessed under the "Business" heading. The prices set out there are net prices excluding VAT.With international deliveries, the customer may in individual cases be required to pay additional taxes (e.g. in the event of an intra-community transaction) and/or expenses (e.g. duties). However, these shall not be payable to the provider, but to the duty or tax authorities responsible there.Postage costs incurred are not included in the purchase price. They can be viewed on the "Invoices and Payments" page and are specifically indicated during the ordering process. These shall also be borne by the customer unless free delivery has been agreed.
§ 5 Payment and delivery terms
1. The payment and delivery terms can be viewed on the "Invoices and Payments" and "Order and Delivery" pages. § 6 of the General Terms and Conditions shall additionally apply to the lease of software.The customer is only entitled to compensation if the counterclaim is uncontested, legally established or recognised by the vendor.
2. The software shall be delivered as a CD/DVD by way of delivery or as a download, depending on the selection made by the customer.Goods shall be posted worldwide, as long as individual countries are not expressly excluded under specific articles or in the terms of delivery.As long as no other delivery deadline has been given, goods shall be dispatched within 2 working days of conclusion of the agreement or, with pre-payment, only after receipt of the full purchase price and postage costs.If the software is available via download, the customer shall receive instructions for carrying out the download within 24 hours of receipt of payment.
3. As a consumer, the customer is asked to carefully check the goods on delivery for completeness, obvious shortfalls and transportation damage, and to inform the provider and the dispatch company of complaints as soon as possible. The customer's warranty claims remain unaffected by this.Where the customer is a consumer, the risk of accidental destruction and accidental deterioration of the object purchased during delivery is not transferred to the customer until the goods have been delivered, regardless of whether the delivery is insured or not.If the customer is not a consumer, delivery and dispatch is at his risk.The goods remain the property of the provider until the full purchase price has been received.
4. It is agreed that, in the event of exercising the right of cancellation applicable to consumers in distance contracts, the customer shall bear the costs of returning the goods in accordance with § 357 para. 2 of the German Civil Code ('Bürgerliches Gesetzbuch' or 'BGB'), if the goods supplied correspond with those ordered and the price of the item being returned does not exceed 40 Euro, or, if the price for the goods is higher than this, at the time of the cancellation the customer has not yet rendered a service in return or made a contractually agreed partial payment.
§ 6 Software leasing
1. Software offered under the heading "Lease" can be leased by consumers. Under leasing, there are no limitations in terms of functionality compared to the purchased version of the software.
2. The lease agreement is unlimited and does not have a minimum period. It can be cancelled at any time by giving one month's notice.
3. The agreed lease price is payable monthly in advance by direct debit on the first day of the start of each monthly period.
4. As long as nothing else is demanded, the customer shall receive an invoice (PDF) via email concerning each monthly lease payment.
5. If the monthly charge cannot be paid due to circumstances that the customer has caused (e.g. lack of account funds), the provider is entitled to block the leased software from further use after a period of seven days from the unsuccessful attempt at collection. The software will no longer be fully functional subsequently. The provider shall not be liable for any detriment caused to the customer by this. The software shall be unblocked within 24 hours of receipt of the outstanding payment amounts. Where there has been a previous failed attempt at collection during the term of the agreement, the provider is entitled to cancel the lease agreement without notice and without warning in the event of another (or a subsequent) returned debit note.
§ 7 Warranty
1. The legal provisions shall apply.
2. Where the customer is a business operator, the following shall apply notwithstanding para.
1:a) Only the provider's own statements and the manufacturer's product description shall be deemed to be agreed as a constituent of the goods, and no other advertising text, public promotional texts and expressions issued by the manufacturer.
b) The customer is obliged to examine the goods for quality and quantity discrepancies immediately and with the required level of care and to indicate obvious shortfalls to the provider in writing within seven days of receipt of the goods. Timely dispatch is included in observance of the term. This also applies for shortfalls concealed from discovery and determined subsequently.In the event of breach of the obligation to examine the goods and give notice of defects, the validity of warranty claims is excluded.
c) In the event of shortfalls, the provider shall provide warranty by subsequent improvement or supply of a replacement at his discretion.If the correction of defects should fail twice, the customer is entitled to demand a price reduction or to withdraw from the agreement, at his discretion. In the event of subsequent improvement, the provider does not have to bear increased costs incurred from delivery of the goods to a location other than the place of fulfilment, where such delivery does not correspond to use of the goods in accordance with the terms and conditions.
d) The warranty period is one year from delivery of the goods. The shortened warranty period does not apply to damages caused culpably that can be attributed to the provider resulting in harm to life, the body or health, and damages caused by gross negligence or intentionally, or malice on the part of the provider, in accordance with §§ 478 and 479 of the German Civil Code ('Bürgerliches Gesetzbuch' or 'BGB').
§ 8 Reservation of ownership
If the customer is a business operator, the following shall additionally apply:
1. The provider shall reserve the right of ownership of the goods until all amounts receivable arising from the current business relationship have been settled in full. Pledging or security transfer is not permitted prior to transfer of ownership of the goods subject to retention of title.
2. The customer is entitled to sell the goods onwards in an orderly business transaction.In this event he shall then assign to the provider, who shall accept this assignment, all accounts receivable to the amount of the invoice arising from the sale onwards.Furthermore the customer is authorised to collect debts. Where he does not comply with his payment obligations, the provider reserves the right to collect the outstanding amount himself.
3. In the event of incorporation and amalgamation of the goods subject to retention of title, the provider shall acquire part ownership of the new item in proportion of the invoice value for the goods subject to retention of title to the other processed items at the time of processing.
4. The provider is obliged to release securities due to him on demand from the customer, in so far as the realisable value of the provider's securities exceeds the outstanding balance to be secured by more than 10%. The option of which securities to release resides with the provider.
§ 9 Limitation of liability
1. The provider is liable without limitation for damages arising from harm to life, the body or health, in so far as he maliciously conceals a defect or has issued a guarantee for the character of the purchased object, in all cases of premeditation and gross negligence, in the event of damages under the product liability law, or where otherwise compulsorily prescribed by law.
2. In so far as there are substantial obligations arising from the agreement, breach of which shall endanger fulfilment of the purpose of the agreement, the provider's liability in the event of slight negligence is limited to foreseeable damages typical of such an agreement.
3. In the event of breach of minor contractual obligations, liability in the event of breaches of obligation caused by slight negligence is excluded.
4. Data communication via the Internet cannot be guaranteed to be error-free and/or available at any time, in accordance with the current state of technology. In this respect the provider is liable for neither the constant nor the uninterrupted availability of the website and the service offered there.
§ 10 Place of fulfilment, legal domicile
German law shall apply under exclusion of the UN convention on contracts for the international sale of goods. For consumers this legal option only applies where protection granted under the compulsory terms of the law for the country where the consumer normally resides is not withdrawn (favourability principle).The place of fulfilment for all services arising from the business relationship with the customer, and the legal domicile, is the provider's place of business, in so far as the customer is not a consumer but is a trader, legal person under public law or a special fund under public law.The same applies if the customer has no general legal domicile in Germany or the EU or his domicile or normal place of residence is not known at the time of the filing of an action. The authorisation to invoke the court in another legal domicile remains unaffected by this.