General Terms and Conditions and Consumer Information
Last updated: 10 June 2014
Please read these General Terms and Conditions (T&Cs) carefully. When you place an order for a product or service, you are declaring that you are in agreement with these General Terms and Conditions.
SCOPE OF APPLICATION
These General Terms and Conditions shall apply to all sales of products (in particular, hardware and software) ("products") and the provision of services by Digital River Ireland Ltd., Dromore House, East Park, Shannon, County Clare, V14 AN23, Ireland, Company Number: 406071 (references to "us", "we" and "our" must be interpreted accordingly) via this website to you, the purchaser (references to "you" and "your" must be interpreted accordingly).
These General Terms and Conditions shall apply to both businesses and consumers. A "consumer" shall be any natural person who acquires moveable property or services for their own or their family’s use.
When you send your order, you are declaring that you are in agreement with these General Terms and Conditions.
These conditions shall also apply to future contractual relations.
We can also hand over the services we offer to a third-party supplier for fulfilment. We shall not be obliged to furnish the services ourselves. If the third-party supplier makes the provision of the services dependent upon the fact that you consent to its performance conditions, we shall require that you consent to the relevant performance conditions before the service is provided.
OFFER, ACKNOWLEDGEMENT AND ACCEPTANCE
The prices, price quotations and descriptions shown or mentioned on this website do not constitute offers.
Although we endeavour to ensure that the products shown on the website are available, we cannot guarantee that, at the time when your order is placed, all the products in question will be in stock. The same shall apply to services that we provide ourselves, if preparations that are dependent upon the nature of the service must be made in order for said services to be provided. If we provide services whereby we demonstrably enable you to gain access to a third party, the information given by that third party shall apply. Should we be unable to process or complete your order, we shall duly inform you of this immediately, by e-mail. If the period between the time when your order is placed and the time when the product or service is likely to become available is longer than two weeks, you shall be entitled to cancel your order within one week from the time when our information about its availability is received. The date when we receive the cancellation shall be authoritative for timeliness in this regard. If one or more of the items you have ordered ceases to be available permanently, we shall also inform you about this by e-mail.
Any order that you have placed shall constitute an offer that has been made by you to us for the ordering of products or services in accordance with these General Terms and Conditions. All orders that you have placed shall require subsequent acceptance by us. We shall not be under any obligation to accept your order. 3.2 of these General Terms and Conditions shall remain unaffected.
Before we accept it, an automatic e-mail confirmation of your order will be generated. Bear in mind that this automatic order confirmation does not constitute acceptance of your order on our part.
We shall not accept your offer with validity, and nor will the contract come into being, until we dispatch the products you have ordered or commence providing the service in question. Download products will normally be supplied upon or directly following receipt of payment. The delivery periods for physical products will be listed on the website, in the order confirmation or in our acceptance declaration. In the case of services, the information we have given shall apply or, if we are providing the services through a third party to whom we demonstrably enable you to gain access, the information given by that third party will apply.
We can store documents relating to orders that have been received, confirmations, acceptance declarations and other contract documents for a reasonable or legally prescribed period of time after we have declared our acceptance. We shall not be under any obligation to store such information. In response to a written request, we can send you copies of the same; you will bear the costs relating to a copy and the dispatching of documents. However, you shall be obliged to print them out yourself, as well as these General Terms and Conditions, or to save them onto a data carrier.
THE INFORMATION YOU GIVE
You shall confirm that all the information entered by you when you order the product is correct at that time, and that the information is sufficient to enable us to execute your order.
You shall be responsible for inputting and maintaining the account details we have for you, and for updating and adding to them as soon as changes become necessary. You must protect all the passwords and data we give you to enable you to access the web-based customer service facility and order products and services against unauthorised access.
PRICE AND TERMS OF PAYMENT
The information relating to the products and services in question, as well as the conditions below, shall apply to the prices that are shown on the website.
At any time before accepting your order, we shall be entitled to make deductions or adjust prices in the light of cost increases, especially in relation to increased material, transport and labour costs, the increase or introduction of taxes, customs charges and other fees, and changes in currency exchange rates. We shall inform you of such changes immediately, referring you to the conditions that are applicable. If you continue with the placing of the order after having received notification to that effect, or confirm the order again in a different manner, you will be declaring your agreement that the product or services should be supplied to you at the new price. We shall also inform you of the consequences of said decision on your part.
Unless noted elsewhere, prices shall taken to be in the currency shown on the website.
The regions to which we supply physical products (products on data carriers) ("delivery region
") are listed on the website. Unless stated otherwise, the prices shown are taken to be:
plus the cost of dispatching or transporting the items to the agreed place of delivery within the delivery region (dispatch costs are shown on the website), as well as
inclusive of turnover tax or VAT, as well as other taxes, customs charges and other fees that might have to be added to the price. When you order, you are declaring that you are in agreement with the payment of the dispatch and transport costs we quote for the products at the time when the order is placed. We shall not ship products to countries or individuals if it is forbidden to supply them to such countries or such individuals on the basis of currently applicable law.
Payments must be effected before delivery, and in the manner described on the website. If payment methods are to be used that differ from that description, our prior agreement must be obtained.
You will be able to see the payment methods that can be used for your order, displayed on the website.
We will debit credit cards at the time when the product is dispatched. We reserve the right to arrange for credit cards to be checked before your order is accepted.
You shall only be entitled to offset if your counterclaims have been established as legally binding or are undisputed. This shall also apply to your rights of retention.
If you default, we shall be entitled to charge default interest. We can apply the bank rate at the place of payment as default interest if and insofar as it exceeds 5 (five) percentage points. Otherwise, the default interest shall be 5 (five) percentage points. We reserve the right to claim a default loss that is greater than this.
DELIVERY AND RISK TRANSFER
We reserve the right to prompt and correct self-delivery.
The items shall be delivered to a valid address, which you will have given us, within the delivery region ("delivery address"). You shall be obliged to check the delivery address in all confirmations and acceptance declarations that we have issued, and to notify us as soon as any errors or omissions come to light. You shall bear all costs that arise in consequence of any changes to the delivery address that you make after your order has been placed.
If you neglect to accept the products that have been delivered, or refuse to accept them, the risk of damage or loss to said product shall be transferred to you, regardless of all our other rights:
At your expense and with your bearing the risks in full, we shall be entitled to attempt to deliver the product by any means and using any methods we consider appropriate or that are reasonable, or to put it into storage.
Upon request, you shall be obliged to pay all reasonable storage costs, as well as all other reasonable costs associated with an offer that has failed and with the preservation of the product that should have changed hands, such as arise because you have neglected or refused to accept it.
If we deliver products in partial shipments, each partial shipment shall represent a separate contract. We shall only be entitled to use partial shipments insofar as can reasonably be expected. If one or more partial shipments exhibit defects, you shall not be entitled to withdraw from subsequent partial shipments.
The risk of fortuitous loss or destruction and of fortuitous spoiling of the product shall be transferred to you as soon as it is handed over to the person who is transporting it, but at the latest when it comes into your possession.
DUTY TO INSPECT AND REQUIREMENT TO SUBMIT COMPLAINTS ABOUT DEFECTS AS SOON AS PRODUCTS ARE RECEIVED
To the extent that is usual in commerce, you shall have a duty to check products as soon as the shipment in question has been received, and to satisfy yourself that they are in perfect condition and correspond to their description, and that nothing is missing. You can only assert rights on the basis of the defectiveness of a product or a shortage if you notify us of this in writing immediately, or at the latest within 5 (five) days from the time when the products are received or, in the case of a hidden defect, as soon as it has been discovered.
Should a product supplied by us consist of or include software, that software shall be licensed by us or by the relevant licensor in accordance with the associated end-user licensing agreements, or other licensing conditions that are stated in documents enclosed with the software and/or the product. This software can only be reproduced, adapted, translated, made available, sold, altered, disassembled, decompiled, back-translated or combined with other software if this has been expressly permitted by (i) the licensing conditions or (ii) the relevant legislation.
We shall be liable for deliberate and grossly negligent conduct on the part of our staff and other vicarious agents, regardless of the level of fault with respect to claims brought about by death, bodily injury and damage to health.
We shall also be liable for ordinary negligence on the part of our staff and other vicarious agents if it proves impossible to perform the contract, if performance is delayed, if a warranty is breached or if any other material contractual obligation is not fulfilled. "Material contractual obligations" are obligations without the fulfilment of which the contract cannot be deemed as yet duly executed, and on the discharging of which you should be able to rely as a matter of course. In these situations, our liability shall be limited to claims that are typical for such a contract that we could reasonably have been expected to anticipate when the contract was concluded.
Liability on our part that exceeds that which is stated in 9.1 and 9.2 of these General Terms and Conditions shall be precluded. This shall apply to all valid claims that are asserted for the breaching of contractual obligations and to valid claims arising out of wrongful acts.
All liability limitations arising from 8.1. to 8.3 of these General Terms and Conditions shall also apply for the benefit of our staff and other vicarious agents.
Valid claims asserted on the basis of the Product Liability Act shall remain unaffected.
RETENTION OF OWNERSHIP
Ownership of the products shall not be transferred to you until the order price has been paid in full, including any interest and other sums relating to the products. Up until that time, you must store the products in such a way that it can be demonstrated that they are our property without delay and at any time, and you must maintain detailed records and documents so that we are in a position to distinguish between products that have been paid for in full and those for which payment is still outstanding. It is not permissible to pledge products or transfer them by way of security.
We reserve the right to repossess and resell the products concerned if you default or if the preconditions for withdrawal exist. If we do repossess a product, this shall constitute our declaration of withdrawal.
THIRD PARTY RIGHTS
You must release us from all liability and all debt claims and costs that arise for us or are submitted to us as a direct or indirect result of all work that must be done on the products in accordance with your instructions or specifications or the instructions of one of your representatives, and which constitute an infringement of proprietary rights held by third parties. This shall not apply if and insofar as you are not responsible for the infringement of proprietary rights held by third parties.
YOUR RIGHTS WHEN A DEFECTIVE PRODUCT IS SUPPLIED; DEFECTIVE PROVISION OF SERVICES
All information relating to the products and any services that are to be provided shall merely constitute descriptions. No warranty shall thereby be declared.
A product shall be deemed defective if it does not have the fitness for purpose agreed or is not suitable for the use provided for in the contract, or if it is not suitable for ordinary use and does not exhibit fitness for purpose that is usual for products of the same type or that the purchaser can expect on grounds of the nature of the product or service, or if the product infringes industrial or intellectual property rights or other rights that are held by third parties. Unless otherwise agreed, the technical and legal regulations that apply in Switzerland shall be authoritative. A service shall be deemed to be defective if it does not comply with that which has been contractually agreed.
If a defective product is supplied, you must determine for us a reasonable deadline by which we must provide subsequent performance. In such a situation, we can choose to remedy the defect by means of repairs or to replace the defective product with a new product. If a service has not been provided in accordance with the contract, you must determine for us a reasonable deadline by which we must provide the service again. 12.4 to 12.7 shall not apply to the provision of services. If subsequent performance fails, you shall be entitled to assert your statutory guarantee rights. If you are entitled to demand compensation or alter the contract, or to continue to demand subsequent performance, we can call upon you to exercise your rights within a reasonable period of time. You must inform us of your decision in writing. If you do not exercise your rights within the period in question, the right to indemnity can only be asserted, or alteration declared, if a further, reasonable period that you have determined for subsequent performance has elapsed without successful subsequent performance.
When the withdrawal right is exercised, your right to enjoy the product shall end. In such a situation, you must immediately remove software from all equipment, storage media, and other files, and destroy the products and all copies of the software that have been made. Furthermore, you must submit a separate written declaration, stating that you will meet the above-mentioned commitments.
If you are a business, your above-mentioned rights shall become time-barred within 12 (twelve) months and, if you are a consumer, within 24 (twenty-four) months from the time when the products are delivered.
Unless agreed otherwise, your rights, as listed under Point 12, shall not apply in the following situations:
If and insofar as the products are repaired or altered by persons other than the manufacturer, ourselves, or authorised agents, and the defect or shortage is attributable to said repairs or alterations.
If and insofar as the defects or shortages are attributable in full or in part to incorrect handling, incorrect use, inappropriate storage, maintenance or installation, or failure to follow the manufacturer’s instructions or other instructions provided by us for the products that are supplied.
PERMITS, CUSTOMS CHARGES AND EXPORT
If, in order for the products to be acquired, transported or used, a permit or licence is required from the government or another official body, it shall be your responsibility to obtain that permit or licence at your own expense, and to furnish proof of it to us upon request. Failure to obtain it shall not entitle you to withhold or delay payment for the item. You shall have to bear all the costs and expenses that we incur through your failure to obtain said permits and/or licences.
The products sold to you in accordance with these General Terms and Conditions may be subject to certain export control laws or regulations within the delivery region in which you receive and/or use them, as well as in other territories. You shall be obliged to comply with said laws and not to effect any actions that might violate them.
Goods imported into Switzerland whose value exceeds a certain level may be subject to customs charges (e.g. if the price of the item exceeds your personal import allowance). When the goods arrive at the location you have designated, the payment of customs charges, import fees or taxes may be imposed upon you. You must bear all these additional costs relating to customs clearance, as well as import fees and taxes, since the latter are beyond our control and we are not aware of them. You can obtain more precise details of customs rules and fees from a customs office that is responsible for your territory.
When you are making a Purchase, you may be given an option to prepay or not prepay import tariffs and customs duties that may be levied by the destination country, and any disbursement fees, advancement fees or similar fees that may be imposed by the shipper, broker, the customs authority of the destination country or other party (collectively, "Import Costs"). We will make commercially reasonable efforts to estimate the amount of Import Costs (said estimate, the "Estimate"). However, the Estimate may be more or less than the final actual amount of Import Costs due and payable. We have no control over the Import Costs and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import tariffs and customs duties that may be applicable to your Purchase.
If you choose to prepay the Import Costs, you agree and acknowledge that (a) the actual Import Costs may be more or less than the Estimate and (b) you will NOT be asked to pay more money OR receive any refund in the case that the actual Import Costs differ from the Estimate.
If you choose to prepay the Import Costs contained in the Estimate, you agree and acknowledge that the receiving party in the Product’s country of ultimate destination remains ultimately responsible for making entry and properly declaring the merchandise to the appropriate customs authorities, paying any applicable customs duties/fees/taxes/charges, and/or satisfying any additional import-related requirements. You should contact the local customs authorities in the relevant jurisdiction for further information on the applicable customs requirements and procedures, duties, fees, taxes, and/or other charges that may be assessed against the Product.
If you choose to not prepay the Import Costs, you agree and acknowledge that (i) the actual Import Costs may be more or less than the Estimate; (ii) you (and not digital river, the broker, the shipper, the supplier or any other party) must bear the responsibility of paying all actual Import Costs; (iii) in the case that any entity other than you must pay some or all of the actual Import Costs on your behalf to effect customs clearance, you will reimburse (upon request) that entity in full for the actual Import Costs paid on your behalf; and (iv) failure by you to pay Import Costs in a timely manner may not only cause delays beyond our original delivery estimates, but also may put you at risk of potential liability for tariffs and other fees.
All notifications and other communications that are related to our contract can be conducted in person, by post with sufficient postage, by fax or by e-mail, their being addressed to the most recent relevant address and the competent contact; details of the above will have been given by one party to the other in writing. That address will also be the address for service for documents, should legal proceedings arise.
PERSONAL INFORMATION AND DATA PROTECTION
We always comply with the relevant data protection laws and will only collect, store and use your personal information in accordance with the provisions of our data protection declaration
We hereby undertake only to transfer your information, including personal information, to the relevant product manufacturer, licensor and/or service-provider or supplier if this is necessary in order to enable the registration of products you have ordered under these General Terms and Conditions, because registration is an essential prerequisite if you are to avail yourself of warranties, technical support and other services.
You are not entitled to assign to third parties the rights conferred upon you by these General Terms and Conditions.
All our shipments and services shall be furnished exclusively on the basis of these General Terms and Conditions. Any terms and conditions that contradict or differ from these General Terms and Conditions that you might use will only apply if they have been expressly recognised by a member of our management or an authorised officer of our company, or a person who has been given authority by us for this purpose. Any general terms and conditions that you might use shall not be legally binding even if their validity has not been expressly contested. Tacit acceptance of your general terms and conditions that is based on conduct from which it might be inferred shall be precluded.
If one of the parties delays in carrying through its rights as acquired under these General Terms and Conditions or forbears or neglects to do so, or if it guarantees deadlines to the other party, those rights as held by that party shall nevertheless remain unaffected.
APPLICABLE LAW, PLACE OF JURISDICTION
These General Terms and Conditions shall be governed by Swiss law. The provisions of the UN CISG shall not apply.
If you are a business, a legal person under private or public law, or a public-law special fund,Cologne shall be the sole place of jurisdiction for all disputes that arise from the contractual relationship, whether directly or indirectly. The language for legal proceedings and for alternative dispute resolution shall be German.