General terms and conditions, including customer information
Table of contents
- Scope of application
- Conclusion of contract
- Right of withdrawal
- Prices and payment terms
- Delivery and shipping terms
- Granting of usage rights for licence keys
- Retention of title
- Liability for defects (warranty)
- Applicable law
- Place of jurisdiction
- Code of conduct
- Alternative dispute resolution
§ 1 Scope of application
1.1 These general terms and conditions (hereinafter referred to as the "GTCs") of Cybertrading GmbH (hereinafter referred to as the "seller"), apply to all contracts for the supply of goods concluded by a consumer or business (hereinafter referred to as ''customer'') with the seller with regard to products offered in the seller’s online store. Unless otherwise agreed, the terms and conditions of the customer are hereby excluded.
1.2 Unless something else has been expressly agreed, these GTCs apply mutatis mutandis to contracts for the supply of licence keys under which the seller undertakes to provide the customer with a licence key to use the described software or content, and to grant the contractually agreed rights to use the respective software or content. The customer will not acquire intellectual property rights on the software or content. The specifications of the software or content are based on the respective product descriptions in the seller’s online store.
1.3 A "consumer" within the meaning of these GTCs is any natural person who concludes a legal transaction for a purpose which cannot be attributed to their commercial or self-employed activity. A "business" within the meaning of these GTCs is a natural or legal person, or a partnership with legal capacity, who or which, when entering into a legal transaction, is performing its trade, business or profession.
§ 2 Conclusion of contract
The product descriptions in the seller's online store do not constitute binding offers by the seller. The existence of the contract shall be determined based on whether the relevant article in the online store of the seller is marked with a price to it or not. If articles are marked with a price, the customer can choose between the following order options:
- Online order form (shopping cart system)
- Best offer option
2.1 Using the online order form (shopping cart system) to place an order
2.1.2 Customers can submit an offer by using the online order form integrated into the seller's online store. In this case, after the customer has placed the selected goods in the virtual shopping cart and has completed the electronic ordering process, as the final step the customer places a binding order for the products in the shopping cart by clicking on the "Send order" button.
2.1.3 The seller can accept the customer's offer within a period of five days,
- by sending the customer an order confirmation in writing or electronic form (by fax or e-mail), whereby the date of receipt of the order confirmation is the definitive date, or
- by delivering the ordered goods to the customer, whereby the date of receipt of the goods by the customer is the definitive date, or
- by asking the customer for payment after handing the customer's order to a carrier.
If several of the above-mentioned alternatives apply, the agreement becomes binding at the time the first alternative occurs. The time limit for accepting the offer shall start on the day after the submission of the offer by the customer and end on the fifth day, following the dispatch of the offer. If the seller does not accept the customer's offer, this shall be deemed a rejection of the offer, with the effect that the customer will no longer be bound to the offer.
2.1.4 When submitting an offer via the seller’s online order form, the contract text will be saved by the seller after conclusion of the contract and sent to the customer after sending his order in text form (e.g. e-mail, fax or letter). Any further provision of the contract by the seller does not take place. If the customer has set up a customer account in the seller's online shop before submitting his order, the order data will be archived on the seller's website and can be retrieved by the customer via his password-protected customer account with the corresponding login details.
2.1.5 Before the binding submission of the order via the seller's online order form, the customer can identify possible input errors by carefully reading the information displayed on the screen. To identify potential input errors more effectively, customers can use the zoom function of the browser to enlarge the screen. As part of the electronic ordering process, the customer can use the standard keyboard and mouse functions to make corrections until clicking on the "Send order" button, which concludes the order process.
2.1.6 Contracts shall be concluded exclusively in German and English.
2.1.7 The seller normally uses e-mail and an automated order process to handling orders and communicate with the customer. To receive e-mails from the seller, customers have to ensure that the e-mail address they provide is correct. In particular, customers must make sure that the use of spam filters does not prevent the delivery of e-mails related to the order sent by the seller or authorised third parties.
2.2 Order using the “Best offer” option
To make use of the best offer option, the customer can use the online contact form available on the seller’s website, accessible by clicking on the "Best offer" button, to make a non-binding request for an offer, including a proposed price, to the seller. At the request of the customer, the seller shall send the customer a binding offer, by e-mail, fax or letter, for the goods previously selected by the customer, from the seller's product range. In doing so, the seller can consider the price proposal of the customer or submit a different offer to the customer. The customer can accept this offer from the seller by telephone, e-mail or post, or by paying the purchase price offered by the seller within 7 (seven) days, whereby the date of receipt of the offer is not used to calculate the time period. The date of receipt of payment by the seller is definitive for the acceptance of the offer by payment. If the last day of the acceptance period falls on a Saturday, Sunday or a public holiday officially recognised in the customer’s country of domicile, the deadline shall be moved to the next working day. If the customer does not accept the offer of the seller within the afore-mentioned period, the seller is no longer bound by the offer and can freely use the goods. The seller shall draw the customer's attention to this fact in the offer.
2.3 Ordering items without pricing (price on request)
If certain items in the online store of the seller do not have a price, as they first have to be procured by the seller at the request of the customer, the following applies to the conclusion of the contract:
The customer can use the online contact form available on the website of the seller, which is accessible by clicking on the "Best offer" button, to make a non-binding request to the seller for an offer. At the request of the customer, the seller shall send the customer, by e-mail, fax or letter, a binding offer for the goods previously selected by the customer from the seller's product range. The customer can accept this offer from the seller by telephone, e-mail or post, or by paying the purchase price stated by the seller within 7 (seven) days, whereby the date of receipt of the offer is not used to calculate the time period. The date of receipt of payment by the seller is definitive for the acceptance of the offer by payment. If the last day of the acceptance period falls on a Saturday, Sunday or a public holiday officially recognised in the customer’s country of domicile, the deadline shall be moved to the next working day. If the customer does not accept the offer of the seller within the afore-mentioned period, the seller is no longer bound by the offer and can freely use the goods. The seller shall draw the customer's attention to this fact in the offer.
§ 3 Right of withdrawal/cancellation
3.1 Consumers are generally entitled to a right of cancellation.
3.2 For further information on the right of withdrawal/cancellation, please refer to the information concerning the right of withdrawal/cancellation provided by the seller.
3.3 This right of withdrawal/cancellation does not apply to consumers who, at the time of conclusion of the contract, do not reside in any Member State of the European Union and whose sole domicile and delivery address are located outside the European Union at the time of conclusion of the contract.
§ 4 Prices and payment terms
4.1 Unless otherwise stated in the product description or on the seller's website, the quoted prices are gross prices, which include any applicable VAT. Where applicable, additional delivery and shipping costs shall be stated separately in the respective product description or on the seller's website.
4.2 Deliveries to countries outside the European Union may incur additional costs in individual cases, which the seller is not responsible for and which shall be borne by the customer. These can include, for example, costs for transferring money via banking institutions (e.g. bank charges, exchange rate fees) or legal import duties or taxes (e.g. customs duties). These costs may be incurred in relation to the transfer of funds, if the delivery is not made to a country outside the European Union, but the customer makes the payment from a country outside the European Union.
4.3 The payment option(s) shall be communicated to the customer in the online store or on the seller's website.
4.4 If payment in advance by bank transfer has been agreed, the payment will be due immediately upon the conclusion of the contract, unless the parties have agreed a later due date.
4.6 If the payment method "payment on invoice" has been selected, the purchase price is due once the goods have been delivered and invoiced. In this case, the purchase price is payable in full within 14 (fourteen) days of receipt of the invoice, unless otherwise agreed. The seller reserves the right to only offer customers the option to pay on invoice up to a certain order volume, and to reject this method of payment if the stated order volume is exceeded. In this case, the seller shall draw the attention of the customer to this payment restriction in the payment information section of the online store. Furthermore, the seller reserves the right to carry out a credit check when the customer selects the option to pay on invoice and to reject this method of payment if the credit check is negative.
4.7 If the customer chooses to pay using the option "PayPal direct debit", PayPal will deduct the invoice amount from the customer's bank account upon receipt of a SEPA direct debit mandate, but not before the deadline for pre-notification on behalf of the seller. Pre-notification is any communication (e.g. invoice, contract) used to notify the customer of the SEPA direct debit collection. If the direct debit is not honoured due to lack of funds, due to the wrong bank account being specified, or if the customer objects to having the account debited, even if the customer is not entitled to do so, the customer shall bear the chargeback costs of the respective bank to the extent that they have been incurred for reasons attributable to the customer.
§ 5 Delivery and shipping terms
5.1 Unless agreed otherwise, the goods shall be delivered to the delivery address specified by the customer.
5.2 If delivery of the goods fails for reasons for which the customer is responsible, the customer bears the reasonable costs incurred by the seller. This does not apply with regard to the cost of the consignment, if the customer exercises his right of withdrawal effectively. For the return costs applies in case of effective exercise of the right of withdrawal by the customer to the provision made in the cancellation policy of the seller.
5.3 If the customer is a business, the risk of accidental loss and accidental deterioration of the sold goods will pass to the customer upon the handing over of the goods to the forwarding agent, freight carrier or the person or institution otherwise contracted to deliver the goods. If the customer is a consumer, the risk of accidental loss and accidental deterioration of the sold goods will pass to the customer upon the delivery of the goods to the customer or a person authorised to receive the order. By way of derogation, the risk of accidental loss and accidental deterioration of the sold goods will also pass to the consumer as soon as the seller hands over the goods to the forwarding agent, freight carrier or other person or institution otherwise contracted to deliver the goods, if they have been engaged by the customer, or the seller has not specified this person or institution to the customer in advance.
5.4 The seller reserves the right to withdraw from the contract in the case of a late or incorrect delivery of incoming goods by its suppliers. This only applies if the failure to deliver is not due to a fault on the part of the seller, in particular, if the seller has acted diligently and concluded a congruent hedging transaction with its supplier. The seller will undertake all reasonable efforts to obtain the goods. In case of the non-availability, or only partial availability of the goods, the customer will be notified immediately and any payment in return shall be promptly refunded.
5.5 If the customer collects the goods, the seller shall first notify the customer by e-mail that the ordered goods are available for collection. Upon receipt of this e-mail, the customer can arrange with the seller to collect the goods from the seller's address. In this case, no shipping costs will be charged.
5.6 Licence keys will be provided to the customer as follows:
- by e-mail
§ 6. Granting of rights of use for licence keys
6.1 The supplied licence key entitles the customer to use the software or content shown in the respective product description to the extent described therein.
6.2 The granting of rights shall not take effect until the customer has paid the outstanding fee in full.
§ 7 Retention of title
7.1 The seller will retain the ownership of the delivered goods until the purchase price has been paid in full.
7.2 With respect to businesses, the seller will retain the ownership of the delivered goods until all claims arising from the business relationship have been settled in full.
7.3 If the customer is a business, it is entitled to resell goods subject to a retention of title in the ordinary course of business. The customer shall assign all resulting claims against third parties to the amount of the respective invoice value (including VAT) in advance to the seller. This assignment is valid irrespective of whether the reserved goods have been sold before or after processing. The customer remains entitled to collect this claim even after it has been assigned. This does not affect the authority of the seller to collect receivables. The seller shall not collect any receivables as long as the customer fulfils its payment obligations to the seller, has not fallen into payment arrears and in particular, no petition has been filed to commence insolvency proceedings.
§ 8 Liability for defects (warranty)
If the purchased item is defective, the provisions of the statutory liability for defects shall apply. This does not apply in the following cases:
8.1 If the customer is a business,
- the seller can select the type of remedy;
- for new goods, the limitation period for defects is one year from the transfer of risk;
- in the case of used goods, the rights and claims due to defects are fundamentally excluded;
- the period of limitations does not restart if a replacement delivery takes place within the scope of liability for defects.
8.2 If the consumer is a consumer, the following applies to used goods with the restrictions set out in the following paragraph: Claims for defects are excluded if the defect occurs only after one year from delivery of the goods. Defects that occur within one year of delivery of the goods can be asserted within the statutory limitation period.
8.3 The limitation of liability and shorter limitation periods set out in the preceding paragraphs do not apply,
- to items which have been used in construction as intended, and caused the defect,
- to compensation and reimbursement claims of the customer, or
- if the seller has fraudulently concealed the defect.
8.4 In addition, the statutory limitation periods for businesses with respect to the right of recourse in accordance with Article 478 of the German Civil Code (BGB) remain unaffected.
8.5 If the customer is a business according to Article 1 of the German Commercial Code (HGB), the customer will be subject to inspection and reporting obligations as per Article 377 HGB. If the customer fails to meet the afore-mentioned reporting obligations, the goods will be deemed to have been accepted.
8.6 If the customer is a consumer, the consumer shall file a claim for transport damage with the carrier and notify the seller. If the customer does not comply with this this does not affect the consumer’s statutory or contractual rights under the warranty.
§ 9 Liability
The seller shall be liable to the customer for all contractual, quasi-contractual and statutory claims, including claims in tort for damages and the reimbursement of expenses as follows:
9.1 The contractor is liable regardless of the legal grounds, without limitation,
- for intent or gross negligence,
- for intentional or negligent injury to life, body or health,
- based on a guarantee, unless otherwise agreed,
- based on mandatory liability, for example the Product Liability Act.
9.2 If the seller negligently violates a material contractual obligation, the liability is limited to contractually foreseeable damage, unless the seller is liable without limitation in accordance with the above clause. Material contractual obligations are defined as obligations imposed on the seller according to the content and purpose of the contract, which are essential for the proper execution of the contract, and the fulfilment of which the client may routinely rely upon.
9.3 In all other cases, the liability of the seller is excluded.
9.4 The above liability regulations also apply with regard to the liability of the seller for its vicarious agents and legal representatives.
§ 10 Applicable law
10.1 All legal transactions between the parties shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany, excluding the UN Convention on the Sale of Goods (CISG). For consumers, this choice of law applies only to the extent that it does not deprive consumers of the protection afforded to them by the mandatory regulations of the law of the country in which the consumer has its normal place of residence.
10.2 Furthermore, with regard to the statutory right of withdrawal, this choice of law does not apply to consumers who, at the time of conclusion of the contract, do not reside in a Member State of the European Union and whose sole domicile and delivery address are located outside the European Union at the time of the conclusion of the contract.
§ 11 Place of jurisdiction
If the customer is a business, a public legal entity or a public-law special fund with a registered office in the territory of the Federal Republic of Germany, the place of jurisdiction for any disputes arising from this agreement will be the registered office of the seller. If customers are domiciled outside the territory of the Federal Republic of Germany, the registered office of the seller will be the sole place of jurisdiction for any disputes arising from this contract, if the contract or the claims arising from the contract can be attributed to the customer's professional or commercial activities. Nevertheless, in the above cases, the seller is entitled to bring the dispute before the court at the location of the customer’s registered office.
§ 12 Code of conduct
The seller is subject to the quality criteria of Trusted Shops, which are available at https://www.trustedshops.com/tsdocument/TS_QUALITY_CRITERIA_de.pdf.
§ 13 Alternative dispute resolution
13.1 The EU Commission provides a platform for online dispute resolution at https://ec.europa.eu/consumers/odr
The purpose of this platform is to assist consumers in settling disputes arising from online sales or service contracts out of court.
13.2 The seller is not obliged or prepared to take part in a dispute resolution process at a consumer dispute resolution body.