Table of Contents
- Scope of application
- Products and performance specifications
- Bestellvorgang und Vertragsabschluss
- Ordering Process and Conclusion of Contract for Services
- Delivery and availability
- Payment terms
- Saving the text of the contract and Customer accounts
- Voluntary Right of Withdrawal
- Rights of Use for Software and Retention of Title
- Diclaimers and Limitation of Liability
- Data protection
- Place of Jurisdiction and Contractual Language
1. Scope of application
1.1. The following General Terms and Conditions (hereinafter referred to as “GTC”) shall apply exclusively to the business relationship between endcore GmbH, Am Hetgesborn 28, 35510 Butzbach, Germany (hereinafter referred to as the “Seller”, “we” or “us”) and the customer (hereinafter referred to as the “Customer”) in the version valid at the time of placing the order.
1.2. Within the meaning of these Terms and Conditions and the Instruction on the Right of Withdrawal, a consumer is any natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession (Section 13 BGB – German Civil Code).
1.3. An entrepreneur is a natural or legal person or a legally responsible partnership that when concluding legal transactions is exercising their commercial or independent professional activity (Section 14 BGB – German Civil Code).
1.4. The term “Products” means the services offered by the Seller, which primarily include licenses for the use of software, in particular themes, as well as support services, whether individual or through access to support areas and information.
1.5. Deviating terms and conditions of the Customer shall not be accepted, unless their validity has been expressly agreed by us.
2. Products and performance specifications
2.1. The presentation of Products in the online store does not constitute a legally binding offer, but merely an invitation to place an order. Performance specifications in our catalogues and websites should not be construed as an assurance or guarantee.
2.2. All offers are valid “while stocks last”, unless otherwise stated in the Product description. Any responsibility for errors is hereby excluded.
3. Ordering Process and Conclusion of Contract for Services
3.1. The Customer can choose from the range of Products we offered and place the selected items in a shopping cart by clicking on the “add to cart” button. On the shopping cart page, the Customer can click on the “proceed to checkout” button in order to complete the order.
3.2. By clicking on the “purchase” button, the Customer makes a binding offer to buy the goods in the shopping cart. Before completing the order, the Customer will have the option to view and change the details at any time. Required information is marked with an asterisk (*).
3.3. If the buyer already has a Product and would like to, for example, upgrade (so-called “Upgrades”) the Product or extend the license, the buyer may do this within the buyer’s user account and send the order via the “purchase” button. If the information concerning the person, invoice data or banking information has changed, the customer can update this information in the user profile.
3.4. Next, we will send the Customer an automatic confirmation of receipt by email detailing the Customer’s order, which the Customer can print out using the “Print” function (order confirmation). The automatic confirmation of receipt merely confirms that we have received Customer’s order and shall not constitute acceptance of the order. The purchase agreement shall only come into effect if the ordered Product is dispatched or handed otherwise over by the us to the Customer (e.g. as a download link, provision of a license code or activating a support area) or is confirmed by sending an invoice or an express order confirmation by another email within 3 days of placing the order.
4. Ordering Process and Conclusion of Contract for Services
4.1. We offer the possibility to order individual services, from which customers can choose individual services with the help of an online form.
4.2. Customers may then request a quote for the requested services. The customers will receive a non-binding offer for which they are liable to pay the costs if they accept the offer. Unless otherwise stated, the offer is valid for 14 days.
4.3. Within the scope of the offer, we shall inform the customer of the price and conditions of the offer.
4.4. If the customer wishes to change the agreed-upon services during the execution of the contract or if the circumstances as reported by the customer change after submitting an offer or after conclusion of the contract, and we are not responsible for the change and the change does not fall under our area of risk, we shall make an offer concerning the additional or reduced costs, unless it has been agreed that compensation is based on time and material or the customer expressly foregoes a separate offer. Pending the decision by the customer to accept or reject the offer, we shall pause the services being rendered according to the offer, insofar as the later acceptance of the offer by the customer would result in additional expenses. Agreed-upon delivery periods are extended accordingly.
4.5. If the description of the offer is inadequate, or if its scope is unclear or doubtful in certain areas, the services to be rendered include the duties that are typical for the industry and that are necessary to fulfill the agreed-upon purpose of the contract.
4.6. Unless stated otherwise, user training, documentation, instruction, installation and maintenance are not part of our services and must be agreed upon separately.
4.7. Unless stipulated in a separate agreement, our services do not include any legal services or advice (e.g. concerning trademark, copyright, data protection or competition law), as well as fulfillment of legal information requirements of the customer (e.g. supplier identification, data protection, consumer information in remote sales contracts, etc.).
4.8. The customer bears the responsibility for the materials and contents provided by the customer. The customer shall indemnify us and hold us harmless against all claims and damages that we incur through legal violations that are attributable to the customer and for which the customer is responsible.
4.9. The documents, drafts, raw data, files and other work products done by us, which are required to render the services that are due according to the contract, remain our property. If the customer wants the aforementioned documents, drafts, raw data, files and other work products published, this must be agreed upon and paid for.
5. Prices and prepayment
5.1. All prices quoted on our website are inclusive of any applicable VAT and exclusive of delivery costs.
5.2. The delivery costs are clearly communicated to buyers on a separate information page in our online store and as part of the ordering process.
5.3. Should we accept advance payments, the contract shall come into effect upon provision of the bank details and request for payment. If the payment is not received by the us within 10 days of sending the order confirmation despite a second request for payment, we shall rescind the contract with the result that the order will be cancelled and we will be relieved from the obligation to deliver. The order shall then be deemed completed without any further consequences for the buyer and us. When paying in advance, goods can only be reserved for a maximum period of 10 calendar days.
6. Delivery and availability
6.1. Where payment in advance has been agreed, the goods shall be delivered after receipt of the invoice amount.
6.2. If the ordered Product is not available, because we have not received the goods from his suppliers for reasons beyond his control (e.g. insufficiency of software needed to process theme files), we shall be entitled to rescind the contract. In this case, we shall notify the Customer immediately and may offer to deliver a comparable Product. If no comparable Product is available or the Customer will not accept a comparable Product, we shall refund any payments already made to the Customer immediately.
6.3. Customers shall be notified of delivery times and restrictions (e.g. restrictions on deliveries to certain countries) on a separate information page or in the relevant Product description.
7. Payment terms
7.1. The Customer can select the mode of payment from the available payment methods during the ordering process and before completing the order. Information about the available payment methods is provided to customers on a separate information page.
7.2. International orders may be subject to customs duties and bank charges may be payable on international bank transfers; any such charges, duties or taxes shall be borne by the buyer.
7.3. Where customers are paying per invoice, the payment must be made within 14 days of receipt of the goods and the invoice. In the case of all other methods of payment, the payment must be made in advance and in full.
7.4. Where third-parties (e.g. PayPal) are tasked with payment processing, their general terms and conditions shall apply.
7.5. If a calendar date has been specified for payment, the Customer will be in default if he fails to deliver by that date. In this case, the Customer shall be obliged to pay the statutory late-payment interest.
7.6. The Customer’s obligation to pay late-payment interest shall not preclude our right to assert further late-payments claims.
7.7. The Customer shall only be entitled to offset claims, if his counterclaims are legally established or undisputed by us, unless it concerns the user’s claim for defects. The Customer may only withhold payment if all the relevant claims arise from the same contractual relationship.
8. Saving the text of the contract and Customer accounts
8.1. The Customer can print the text of the contract before submitting the order by using the print function of their browser in the last step of the ordering process.
8.2. We shall send the Customer an order confirmation containing all details of the order to the specified email address. With the order confirmation, the Customer shall receive a copy of the GTC in addition to the withdrawal policy, information on delivery costs and terms of payment and delivery. If you have registered in our shop, you can see your orders and licenses in your profile. We also store the text of the contract but do not make it available online.
8.3. While we store the text of the purchase agreement, we do not make it available on the Internet.
8.4. It is up to the user to exercise the utmost care when using their access data and to take every measure to ensure the confidential and secure handling of data and prevention of disclosure to third parties. The user is responsible for the misuse of access data if they cannot show and prove that it is not due to their own fault. The user is obliged to inform us without delay should they suspect that a third party possesses knowledge of access data and/or is misusing a user account.
9. Right of withdrawal for consumers
A consumer is any natural person who enters into a legal transaction for a purpose that cannot be predominantly assigned to either their commercial or their independent professional activity.
Right of withdrawal
You have the right to withdraw from this agreement within 14 days without specifying grounds. The withdrawal period is fourteen days from the first day of concluding the agreement. In order to exercise your right of withdrawal, you must inform us (endcore GmbH, Am Hetgesborn 28, 35510 Butzbach, email: email@example.com, tel: 0049 6033 9769000) of your decision to terminate this agreement by means of clear declaration (e.g. a letter sent by post, telefax or email). You can use the attached sample withdrawal form. However, this is not mandatory.
The timely notification of the withdrawal from the contract before the expiry of the withdrawal period shall be deemed sufficient for compliance with the withdrawal period.
Consequences of withdrawal
If you withdraw from this contract, we will reimburse all payments we received from you, including the delivery costs (with the exception of any additional costs arising from the fact that you selected a type of delivery other than that offered by us, the cheapest standard delivery). We shall reimburse you immediately, at the latest within fourteen days from the date on which we receive notification of your contract withdrawal. For this reimbursement, we shall use the same method of payment that you used in the original transaction, unless other arrangements have been explicitly agreed with you; under no circumstance shall you be charged fees for this reimbursement.
If you requested that the services should begin during the withdrawal period, you must pay us a suitable amount corresponding to the proportion of the services already rendered in comparison to the overall scope of the services provided for in the agreement up until the time at which you inform us you are exercising your right of withdrawal with regard to this agreement.
Sample withdrawal form
(Should you wish to withdraw from the agreement, please fill out this form and return it to us).
– To: endcore GmbH, Am Hetgesborn 28, 35510 Butzbach, email: firstname.lastname@example.org,.
– I/we hereby withdraw from (*) the agreement I/we concluded for the purchase of the following goods (*)/the provision of the following services (*)
– Ordered on (*)/received on (*)
– Name of the user(s)
– Address of the user(s)
– Signature of the user(s) (only for paper correspondence)
(*) Delete as appropriate.
Information on the Premature Expiration of the Right of Withdrawal
You may be asked to agree to the exclusion of the Right of Withdrawal before acquiring digital content and commissioning us with services. The reason for this is that the purchase of digital content or services is revocable within two weeks, and in order to safeguard our rights of use as well as compensation, we only allow the downloads to take place after expiry of the period of withdrawal and we shall render the agreed-upon services thereafter. You may, therefore, be asked to make the following statement: “I expressly agree that you may begin to execute the contract before expiry of the period of withdrawal. I am aware that I shall lose my Right of Withdrawal upon commencement of the implementation of the contract.”
10. Voluntary Right of Withdrawal
10.1. We grant the customer a voluntary right of withdrawal for canceling the contract within seven days from the conclusion of the contract. The customer may exercise the right of withdrawal by email to: email@example.com. The processing of the contract after withdrawal is done according to legal regulations.
10.2. This right of withdrawal does not limit customer’s statutory rights and therefore not customer’s statutory Right of Withdrawal.
11. Rights of Use for Software and Retention of Title
11.1. Unless otherwise agreed upon in writing, we grant the customer non-exclusive rights to use the Products in a contractually-compliant manner and to the extent that has been contractually agreed-upon. The aforementioned rights of use are unrestricted with regards to time and location.
11.2. We shall retain title to any supplied goods until they have been paid for in full.
11.3. After withdrawal or other form of cancellation, or after rescission of the contract, the rights of use of the Products concerned expire.
11.4. Use by third parties or use beyond the limitations of the licenses is not permitted without our consent of the.
11.5. We may pursue and sanction the unauthorized use of our Products within the legal limits (e.g. demand compensation for damages due to unauthorized use).
11.6. We may assign the customer individual license files, keys or numbers that enable the customer to exercise the granted rights of use.
11.7. We may take appropriate technical measures for the protection against non-contractual use of the software, provided that the actual permitted contractual use is not thereby impaired.
11.8. We may indicate our authorship in the usual places within the software.
11.9. Copyrights, serial numbers and other features used for software identification may not be removed from the software or altered.
12. Open-Source Software and APIs
12.1. We use open-source software and application programming interfaces (APIs) to third-party offers (hereinafter referred to as “Third-party Software”) as part of our services. We grant the customer or passes onto the customer the necessary rights of use within the scope of the respective licenses from Third-party Software.
12.2. We are not responsible for defects that may arise in the case of APIs to third-party offers on websites of API providers. The respective terms and conditions of business of the API providers apply.
13.1. We may change the Products or offer different services if this is reasonable for the user and:
- if this is to the benefit of the user;
- if the change serves to ensure the conformity of the services with applicable law, in particular if the current legal situation changes;
- if the change helps us in complying with mandatory judicial or administrative decisions;
- if the relevant change is necessary to close existing security gaps; or
- if the change is of a purely technical or procedural nature and the user is not significantly affected. Changes that have only an insignificant influence on previous functions do not constitute changes in performance in this sense. This applies in particular to changes of a purely optical nature and to the mere modification of the arrangement of functions.
14. Warranty for material defects
14.1. Functional impairment of the software that originates from the customer’s area of responsibility and, for example, hardware deficiencies, environmental conditions, mishandling, defective data, modifications to the software by the customer, do not constitute deficiencies.
14.2. The goods supplied by the us shall only be covered by a warranty if this has been expressly indicated by the us. Customers are informed about the warranty conditions prior to placing the order.
14.3. Otherwise the warranty shall be governed by statutory provisions.
15. Disclaimers and Limitation of Liability
15.1. The following exclusions and limitations of liability apply with regard to our liability for damage compensation, notwithstanding the other legal claim requirements.
15.2. We assume unlimited liability if the cause of the damage is the result of intent or gross negligence.
15.3. Furthermore, we assume liability for the slightly negligent breach of significant duties, whose breach places the achievement of the purpose of the Agreement at risk, or for the breach of duties whose fulfilment generally enables the execution of the Agreement and on whose compliance they regularly rely. However, in this case, we shall only be liable for the foreseeable damage that might typically occur under the Agreement. We are not liable for the slightly negligent breach of duties other than those stated in the above-mentioned sentences.
15.4. The above-mentioned limitations of liability do not apply for loss of life, bodily injury or damages to health for a defect after assumption of a guarantee for the nature of the Product and for fraudulent concealment of defects. Liability pursuant to the Product Liability Act remains unaffected.
15.5. If our liability is excluded or limited, this also applies for personal liability of its employees, representatives, agents or assistants.
16. Data protection
16.1. We shall process personal data of the Customer only for the intended purpose and in accordance with statutory provisions.
16.2. The personal data provided by the Customer for the purpose of ordering goods (e.g. name, email, address, payment information) may only be used by us to fulfil and execute a contract. This data shall be treated confidentially and not disclosed to third parties, who are not involved in the ordering, delivery and payment process.
16.3. Upon request, the Customer shall be entitled to receive information about the personal data relating to him stored by us at no charge. In addition, the Customer has the right to correct inaccurate information and to block and delete his personal information, insofar as this does not conflict with any statutory retention requirements.
17. Place of Jurisdiction and Contractual Language
17.1. Sole place of jurisdiction for contracts with merchants, legal entities under public law or special funds under public law is the court competent for our registered office. We reserve the right to select another acceptable place of jurisdiction.
17.2. We may use subcontractors to carry out our services unless the interests of the customer, which are to be communicated by the customer, are in opposition to this.
17.3. The law of the Federal Republic of Germany applies, if the Customer is entrepreneur.
17.4. The contractual languages shall be English and German.
17.5. Complaint Procedure via Online Dispute Resolution for Consumers (ODR): http://ec.europa.eu/consumers/odr/.
Last updated on: 01.12.2016