General Terms and Conditions

Content

  1. Scope
  2. Object of Agreement
  3. Conclusion of the contract
  4. Right of withdrawal
  5. Remuneration
  6. Delivery of the software
  7. Grant of rights of use
  8. Licensee Obligation to Cooperate
  9. Liability for defects
  10. Applicable law
  11. Place of jurisdiction
  12. Information on online dispute resolution
  13. Final Provisions

  1. Scope
    1. These General Terms and Conditions (hereinafter "GTC") of Smarter Ones UG (haftungsbeschränkt) (hereinafter "Licensor"), apply to all contracts for the delivery of data not physically stored on a physical data medium, which are produced and provided in digital form (digital content) that a consumer or entrepreneur (hereinafter "Licensee") enters into with the licensor with regard to the software product (hereinafter "Software") presented by the licensor in his online shop. Hereby the inclusion of own conditions of the licensee is contradicted, unless otherwise agreed.
    2. Consumer within the meaning of these terms and conditions is any natural person who concludes a legal transaction for purposes that are predominantly neither their commercial nor their independent professional activity can be attributed.
    3. Entrepreneur within the meaning of these terms and conditions is a natural or legal person or a legal partnership, which acts in the execution of a legal transaction in the exercise of their commercial or independent professional activity.

  2. Object of Agreement
    1. The object of the contract is the transfer of the Software offered by the licensor to the licensee in electronic form, with the granting of specific rights of use, which are more precisely regulated in these terms and conditions.
    2. The licensee does not acquire any intellectual property in the software. The source code of the software is not part of the licensed software.
    3. The nature and quality of the software delivered by the licensor are exclusively determined by the technical specifications made available to the licensee through the licensor’s website before conclusion of the contract. The licensor is not liable for any characteristic of the software going beyond this.
    4. With respect to the software’s installation, refer to the installation requirements and notes described in the installation instructions in particularly describing the hardware and software platform required to be present on the licensee’s side.
    5. For carrying out the installation, an active internet connection is necessary.
    6. Unless the Licensor's product description indicates otherwise, the Licensee will not receive any additional support services, such as updates to the purchased software version (updates) or individual application support provided by the Licensor.

  3. Conclusion of the contract
    1. In addition to free software, the licensee can also order paid software. In order to retrieve the paid offers, a payment by the customer is necessary. For this, an electronic application must be made by means of an order form provided by Sendowl and PayPal (payment provider). By submitting the order form, the user initiates an order and makes an offer within the meaning section 145 of the German Civil Code.
    2. The licensor may accept the offer of the licensee within five days, - by submitting to the licensee a written order confirmation or an order confirmation in text form (fax or e-mail), whereby the order confirmation is deemed to be binding on the licensee or
      - by leaving the ordered contents to the licensee, whereby the access to the licensee is authoritative or
      - by requesting the licensee to pay after submitting his order.
      If more than one of the alternatives mentioned above, the contract comes into effect at the time when one of the aforementioned alternatives occurs first. If the licensor does not accept the offer of the licensee within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the licensee is no longer bound by his declaration of intention.
    3. The period for accepting the offer shall commence on the day after the submission of the offer by the licensee and shall end on the expiry of the fifth day following the dispatch of the offer.
    4. Prior to the binding submission of the order via the online order form, the licensee can continually correct his entries via the usual keyboard and mouse functions. In addition, all entries before the binding submission of the order are displayed again in a confirmation window and can also be corrected there using the usual keyboard and mouse functions.
    5. Only the German language is available for the conclusion of the contract.
    6. The order processing and contact usually take place via e-mail and automated order processing. The licensee must ensure that the e-mail address provided by him for processing the order is correct, so that the e-mails sent by the licensor can be received at this address. In particular, when using SPAM filters, the licensee must ensure that all e-mails sent by the licensor or by third parties commissioned with the order processing can be delivered.

  4. Right of withdrawal
    1. Consumers are in principle entitled to a right of withdrawal. Further information on the right of withdrawal results from the withdrawal instruction of the licensor.

  5. Remuneration
    1. For delivery of the Software and the grant of usage rights in the Software the licensee pays the agreed price including the value added tax required by law.
    2. The prices stated by the licensor are total prices and include the statutory value added tax.
    3. In the case of payments to countries outside the European Union, additional costs may be incurred in individual cases which the licensor is not responsible for and which are to be borne by the licensee. These include, for example, costs for the transmission of money by credit institutions (eg transfer fees, exchange rate fees).
    4. The Licensee has various payment options available that are specified in the Licensor's online shop.
    5. If the payment method "PayPal" is selected, the payment is processed via the payment service provider PayPal (Europe) S.à rl et Cie, SCA, 22-24 Boulevard Royal, L-2449 Luxembourg, subject to the PayPal Terms of Use, available at https: // www.paypal.com/de/webapps/mpp/ua/useragreement-full.

  6. Delivery of the software
    1. The Licensor shall effect the delivery by providing the Licensee with a digital copy of the Software for download via the Internet. For this, the licensor provides the licensee with a link via e-mail, via which the licensee can initiate the download of the digital copy and make the storage of the copy in a storage location of his choice.
    2. For the adherence of delivery dates the time is decisive, in which the software is made available for download and this is communicated to the licensee.

  7. Grant of rights of use
    1. The licensor shall grant the Licensee the simple, transferrable right to use the software in the agreed hardware and software environment for private and/or business purposes without temporal limitations.
    2. No editing rights shall be granted to the Licensee.
    3. Renting the software shall not be permitted.
    4. The Licensee may not remove and/or alter any existing copy protection.
    5. The Licensee must take appropriate technical and organizational measures to ensure that the software will be used according to its intended use.
    6. The Licensee may make a copy of the software for backup purposes. Reproduction of the software for an orderly data backup is part of its intended use.
    7. Should the Licensee exercise his right to transfer his usage rights to a third party, he must also subject the third party to his contractual obligations. The usage rights of the Licensee shall expire with the transfer. Any existing copies of the software must be deleted.
    8. Under Section 158(1) of the German Civil Code, rights granting shall only come into effect after the Licensee pays the required compensation in full.
    9. Should the Licensee seriously infringe on the agreed usage rights, the licensor may extraordinarily terminate the usage rights granted for the affected software. However, this shall require the licensor to have provided an unsuccessful warning with an appropriate grace period.
    10. In case of termination, the Licensee must delete all of his copies of the software and confirm having done so to the licensor in text form upon request.
    11. Further statutory and contractual regulations shall remain unaffected.

  8. Licensee Obligation to Cooperate
    1. The Licensee has informed himself about the essential functional characteristics of the software and shall bear the risk of whether it meets his expectations. The Licensee shall be solely responsible for establishing a functional-and, also in consideration of the additional burden by the Contractual object, sufficiently dimensioned-hardware and software environment for the Contractual objects.
    2. The Licensee shall follow the notices provided by the licensor for the installation and operation of the software; he shall regularly visit the websites accessible through the Internet to inform himself about current notices and consider them when operating the software.
    3. The licensor advises the licensee to take reasonable precautions in the event that the software fails to function properly in whole or in part (for example, by daily backup, error diagnosis, review of the data processing results) and to perform an appropriate backup of its data before installing the software.

  9. Liability for defects
    1. The statutory liability for defects applies.

  10. Applicable law
    1. For all legal relationships between the parties, the law of the Federal Republic of Germany applies, excluding the laws on the international purchase of movable goods. For consumers, this choice of law applies only to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.

  11. Place of jurisdiction
    1. If the Licensee is an entrepreneur, the sole place of jurisdiction for any disputes arising from or in relation to the Contract shall be the registered office of the licensor. However, should the licensor sue, it may also file suit at the location of the Licensee. The right of both parties to interim relief for seeking redress in court in accordance with statutory regulations shall remain unaffected. If the Licensee is an entrepreneur, he may only offset claims of the licensor with legally established or undisputed claims.

  12. Information on online dispute resolution
    1. The EU Commission provides a platform for online dispute resolution on the Internet at the following link: https://ec.europa.eu/consumers/odr
    2. This platform serves as a point of contact for the out-of-court resolution of disputes arising from online purchase or service contracts involving a consumer.
    3. This platform serves as a point of contact for the out-of-court resolution of disputes arising from online purchase or service contracts involving a consumer.

  13. Final Provisions
    1. Changes and additions to the Contract must be issued in writing. Oral side agreements shall not be concluded. General terms and conditions of the Licensee shall not be part of this Contract and shall have no validity for the Contractual relationship.
    2. German law (of the Federal Republic of Germany) shall apply exclusively under exclusion of the UN Convention on the Sale of Goods (CISG). However, this governing law shall only apply to consumers (Section 13 of the German Civil Code) insofar as the provided protection is not revoked by relevant statutory regulations of the state in which the consumer has his habitual residence.
    3. Should a regulation of the Contract or a subsequently added regulation prove to be fully or partially invalid or should a gap be discovered in the Contract or in its additions, the validity of the remaining regulations shall remain unaffected. The Parties are aware that a severability clause may merely reverse the burden of proof. Nonetheless, it is the express will of the Parties to uphold the validity of the remaining Contractual regulations under any circumstances and to thereby waive Section 139 of the German Civil Code. Instead of the invalid regulation or to fill the gap, an effective and enforceable regulation shall be concluded that most closely approximates what the Parties intended or would have wanted legally and economically in accordance with the purpose of the Contract and its subsequent additions if they had thought of this point during Contract conclusion. Should the invalidity of the regulation be due to a measure of performance or time specified therein (period or date), a regulation shall be concluded that most closely and approximates the original measure to the legally permissible extent.


German Version