I. Standard business terms
§ 1 Basic provisions
(1) The following business terms are applicable to all the contracts, which you conclude with us as a supplier shellsoftware via the website. Unless otherwise agreed upon, the inclusion, if necessary, of your own conditions is ruled out.
(2) A ‘consumer’ in the sense of the following regulations is every natural person who concludes a legal transaction which, to an overwhelming extent, cannot be attributed to either his commercial or independent professional activities. The term ‘businessman’ refers to every natural person, legal person or legally responsible partnership that concludes a legal transaction in pursuance of his/its independent professional or commercial activity.
§ 2 Conclusion of the contract
(1) The contract subject matter is the purchase of download products (digital content which is not supplied on a physical data carrier).
(2) In conjunction with the setting up of the respective download product on our website, we refer you to a binding offer associated with the conclusion of a purchase contract under the conditions specified in the product description.
(3) The purchase contract is concluded via the online shopping cart system as follows: The download products to be purchased are placed in the ‘shopping cart’. The customer can use the respective button in the navigation bar to call up the ‘shopping cart’ and make changes at any time. After the ‘check-out’ page has been called up and the respective personal data and payment conditions have been entered, all the order data is displayed again on the order overview page.
If you used an instant payment system to receive payments, you will either be guided to our online shop on the order summary page or forwarded to the web page of the instant payment provider. If you are forwarded to the instant payment system, choose and enter your details as appropriate. You will then be returned to the order summary page in our online shop.
Before the order is sent, you can re-check all the data, change it (which can also be done via the internet browser’s ‘back’ function) or cancel the purchase transaction. By using the ‘purchase’ button to send the order, you indicate your legally binding acceptance of the offer, which results in the conclusion of the purchase contract.
(4) You are not bound by your enquiries regarding the creation of an offer. We supply you with a textual and binding offer (e.g. via e-mail), which you can accept within a period of 5 days.
(5) The execution of the order and the sending of all the details necessitated by the conclusion of the contract take place via e-mail, in a partially-automated manner. Consequently, you have to ensure that the e-mail address that you have deposited with us is the correct one, and that the receipt of the respective e-mails is guaranteed. In particular, you have to ensure that the respective e-mails are not blocked by a SPAM filter.
II. Customer information
1. Identity of the seller
We are willing to enter into dispute resolution proceedings before the consumer arbitration board.
2. Information regarding the conclusion of the contract
The technical steps associated with the conclusion of the contract, the contract conclusion itself and the correction options are executed in accordance to the regulations “conclusion of the contract” in our standard business terms (part I.).
3. Contractual language, saving the text of the contract
3.1 Contract language shall be English.
3.2 The complete text of the contract is not saved with us. Before the order is sent, the contract data can be printed out or electronically saved using the browser’s print function. After the order is received by us, the order data, the legally-mandated details related to distance selling contracts and the standard business terms are re-sent to you via e-mail.
3.3 You will be sent all contractual information within the framework of a binding offer in written form, via e-mail for example, for quotation requests outside of the online shopping basket system, which can be printed out or saved electronically in a secure manner.
4. Main features of the product or service
The key features of the goods and/or services can be found in the respective quote.
5. Prices and payment arrangements
5.1 The prices mentioned in the respective offers represent total prices, as do the shipping costs. They include all the price components, including all the incidental taxes.
5.2 Since the product is downloaded, no shipping costs accrue.
5.3 The payment methods that are available to you are shown by clicking the appropriate button on our website or are disclosed in the respective quote.
5.4 Unless otherwise specified for the respective payment methods, the payment claims arising from the contract that has been concluded become payable immediately.
6. Delivery conditions
6.1 The delivery conditions, delivery date and existing supply restrictions, if applicable, can be found by clicking the appropriate button on our website or in the respective quote.
7.1 Offers and price lists by ShellSoftware are subject to ShellSoftware’ confirmation. Orders of the Customer are binding upon Customer for two (2) weeks after reaching ShellSoftware.
7.2 Contracts must be made in writing. The same applies to any provision cancelling or altering this provision.
7.3 Orders (whether made orally, by telephone, email or fax) are not binding upon ShellSoftware unless confirmed by ShellSoftware in writing.
7.4 Legal declarations by Customers after conclusion of the Contract (e.g. setting of deadlines, notification of defects, withdrawal from the contract, reduction of the purchase price) require written form.
8.1 In absence of a differing indication in the meaning of cl. 3.3 delivery shall be made “ex works” (EXW) (as defined in INCOTERMS 2010) at the manufacturing premises of ShellSoftware in Munich and accordingly the risk of loss shall pass to the Customer; in absence of a deviating agreement this also applies if delivery is effected by employees of ShellSoftware.
8.2 Time limits for delivery and performance are exclusively set out in ShellSoftware order confirmations. The time limits run from the conclusion of the Contract and can be observed by shipment within the time limits, i.e. – depending on the way of delivery – (a) notifying the Customer that the Goods are ready for collection by the Customer or (b) notifying the Customer that the Goods are ready for shipment or (c) start of transport.
8.3 Subject to written agreement ShellSoftware will indicate the way of delivery and/or performance.
8.4 ShellSoftware is entitled to partial deliveries or partial performance within the time limits after having notified the Customer accordingly. The Customer may object (in writing or by fax) to any unreasonable partial delivery or partial performance before dispatch.
8.5 In case of ShellSoftware being in default with deliveries or performance the statutory provisions shall apply, but in any event a reminder by the Customer is required.
(a) ShellSoftware shall not be in default as long as Customer himself is in default with performance.
9.1 The Customer shall examine the Goods delivered as required by German Law (secs. 377, 378 of the German Commercial Code) and in doing so check every delivery in any respect and notify ShellSoftware of any defect in writing immediately after the examination.
9.2 If delivery is not effected by ShellSoftware, but directly by their supplier or another contractor instructed by ShellSoftware (so-called “distance deal”), Customer shall indicate immediately and in writing any defects or false deliveries to such contractor according to the above provisions. If Customer can prove that the supplier or contractor is not known to the Customer, cl. 6.1 applies.
9.3 Customer shall have the burden of proof for all requirements of the warranty claim including the existence of the defect, the time of the defect becoming apparent, the notification pursuant to cl. 6.1 being made in time and the fact that the Goods have been stored properly.
9.4 ShellSoftware warrants the specifications of the Goods, Software and Services. Technical data and product information provided do not qualify as a guarantee or confirmation of product features. In case an agreement has not been reached the existence of a defect shall be determined pursuant to statutory law. However, we do not accept any liability for public information provided by suppliers, producers or third parties (e.g. for advertisements).
9.5 If the Customer is in breach of his obligations under cl. 6.1 and 6.2 warranty claims regarding the respective defect are excluded. This does not apply to defects which are fraudulently concealed by ShellSoftware or in case ShellSoftware has provided a guarantee with respect to the products or services.
9.6 Slight deviations within the scope of technical product tolerance regarding material, colour, weight, dimension or similar characteristic features do not qualify as defects and do not entitle the Customer to deny acceptance of the Goods. Delivery is subject to any reasonable technical or constructive improvements and amendments on the basis of new technical or scientific knowledge and advancements. ShellSoftware does not render any warranties for the Goods, Software or Services beyond the state of technology subject to cl. 6.5 sent. 2.
9.7 This warranty does not cover defects in or damage to the Goods or Software which are due to improper installation or maintenance, misuse, negligence by the Customer or any parts not supplied by ShellSoftware or any modifications made by the Customer or Customer’s customers without prior written approval of ShellSoftware.
9.8 Warranty with respect to defects existing at the passing of risk – subject to cl. 6.1 to 6.7 – is initially provided by remedy of defects or replacement, subject to ShellSoftware.
9.9 In case of Goods being replaced Customer must upon request return the defective Goods to ShellSoftwareprofessionally packed.
9.10 In case replacement or correction of defects,
(a) have failed;
(b) have been rejected by ShellSoftware
(c) have not been effected despite an adequate deadline set by the Customer; or
(d) if a deadline is redundant under applicable law,
the Customer may make use of his statutory rights. However, in cases of immaterial defects, the Customer may not withdraw from the Contract.
10. Choice of Law
10.1 Each party agrees to submit to the jurisdiction of the courts in Munich, Germany, having exclusive jurisdiction for disputes arising from the business relationship and any Contract. However, ShellSoftware shall also have the right to bring a claim before a court at the Customer’s principal place of business or at ShellSoftware discretion before any other court being competent according to national or international law.
10.2 The Contracts and agreements within the business relationship shall be exclusively governed by and construed in accordance with German law excluding the Convention on Contracts for the International Sale of Goods (CISG) and excluding the German provisions on the conflict of laws. However, prerequisites and consequences of the retention of title pursuant to cl. 5 are governed by the law applicable at the place where the object is located in so far as the application of German law under these Terms is legally inadmissible or ineffective.