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Last updated: April 8, 2011
Please read these Terms and Conditions carefully. By placing an order or using our website, you agree to abide by them.
1.1 These Terms and Conditions apply to all sales of products ("Products") and the provision of services by Byteplant GmbH, Heilsbronner Str.4, 91564 Neuendettelsau, Germany (references to "us", "we" or "our" being construed accordingly), via this website ("Website") to you, the purchaser (references to "you" or "your" being construed accordingly). SmartAppFinder is a Byteplant service.
1.2 These Terms and Conditions apply both to entrepreneurs according to Section 14 of the German Civil Code ("BGB") and to consumers according to Section 13 of the BGB. A consumer as defined in the legislation is any natural person who enters into a legal transaction for a purpose that is outside his trade, business or profession. Where expressly indicated, individual stipulations of these Terms and Conditions shall not apply or shall only apply in modified form to consumers; the validity of these Terms and Conditions shall otherwise remain unaffected by this both for entrepreneurs and for consumers.
1.3 By placing an order or using our website you agree to abide by these Terms and Conditions. By publishing a Product on our website you implicitly agree to abide the SmartAppFinder Software Distribution Agreement.
1.4 These Terms and Conditions also apply to future contractual relationships. With respect to consumers, these Terms and Conditions apply to future contractual relationships where these relate to sales agreements.
1.5 With regard to the provision of services, we may provide services ourselves or offer those of a contractual partner or a third party. You therefore do not acquire the actual Service from us but rather the right to use this Service. Our contractual partner or the third party is the Supplier who provides or performs the Service. The Supplier may ask you to agree to its terms and conditions before providing the service.
2.1 All sales and rentals of Products are final. There is no right to revocation or refund after delivery.
2.2 Prices for Products offered may change at any time, and we do not provide price protection or refunds in the event of a price reduction or promotional offering.
2.3 If a product becomes unavailable following a transaction but prior to download, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your product, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by us.
3.1 The prices, price quotations and descriptions made or referred to on the Website do not constitute an offer.
3.2 While we make every effort to ensure that items appearing on the Website are available, we cannot guarantee that all items are in stock at the time of your order. The same applies for services that we render ourselves, when preparations dependent on the nature of the service have to be made. If we provide services by identifiably creating access for you to a third party, the specifications of that third party shall apply. If we are unable to process or fulfill your order, we shall duly and immediately inform you of this by e-mail. If the period between the placement of your order and the forecasted availability is more than two weeks, you shall be entitled to cancel your order within one week of receiving the availability information from us. The date the cancellation is received by us shall determine its punctuality. If one or more of the items ordered by you is/are permanently unavailable, we will likewise inform you by e-mail.
3.3 An order submitted by you constitutes an offer by you to us to purchase Products or order services subject to these Terms and Conditions and is subject to our subsequent acceptance. We are under no obligation to accept your order. Subsection 3.2 of these Terms and Conditions remains unaffected.
3.4 Our acceptance of your order only takes effect and the contract is only concluded when we dispatch the Products you have ordered or start rendering the service. Downloadable Products are generally delivered upon or immediately after receipt of payment. In the case of services, our specifications apply or, if we rendered the services through a third party to which we identifiably grant you access, the specifications of that third party shall apply.
3.5 We can retain documents regarding incoming orders, confirmations, acceptances, and other contractual documents for an appropriate duration after declaration of our acceptance. We are under no obligation to do so however. We may be able to provide you with copies of such documents on written request; the costs of a copy and its delivery shall be borne by you. However you must make sure you print or save a copy of all such documents and these Terms and Conditions for your own records.
4.1 You represent that all information provided by you when placing your order is up-to-date, materially accurate, and sufficient for us to fulfill your order.
4.2 You are responsible for maintaining, promptly updating, and completing your account information with us. You must secure against unauthorized access all passwords and data provided to you by us for the purpose of accessing the web-based customer service and purchasing Products.
5.1 Prices payable for Products are those detailed for the relevant Products or services. The following stipulations shall apply.
5.2 We have the right at any time prior to our acceptance to withdraw any discount and/or to revise prices to take into account increases in costs, including, without limitation, costs of any materials, carriage, labor or the increase or imposition of any tax, duty or other levy and any variation in exchange rates. We shall notify you of this immediately and refer you to the relevant conditions. In such event, if you choose to continue with fulfillment of the order, you acknowledge that the Product will be provided at the corrected price. We shall likewise inform you that this is the case.
5.3 Prices (unless stated otherwise) are in the currency quoted on the Website.
5.4 The places to which we deliver physical Products (Products on data carriers) ("Territory") are listed on the Website. Unless otherwise specified, prices quoted are
5.5 Payments shall be made prior to delivery and by such methods as are indicated on the Website. Payment types that deviate from this description require our prior consent.
5.6 The payment types available for your order are displayed to you on the Website.
5.7 We charge credit cards immediately upon receipt of your order. We reserve the right to verify credit card payments prior to accepting your order.
5.8 No offset may be deducted from any payment due, unless the counterclaim has been recognized by declaratory judgment, is ready to be decided or is undisputed. For entrepreneurs this also applies to rights of retention.
5.9 If you default, we are entitled to demand default interest. If you are a consumer, the interest rate is five (5) percentage points above the base interest rate. If you are an entrepreneur, the interest rate is eight (8) percentage points above the base interest rate. We reserve the right to claim higher damages due to your default.
6.1 The following applies for entrepreneurs: The sale and delivery of goods shall depend on us receiving correct and punctual supplies.
6.2 Delivery shall be to a valid address within the Territory submitted by you ("Delivery Address"). You must check the Delivery Address on any acknowledgement or acceptance we provide and notify us without delay of errors or omissions. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
6.3 If you refuse or fail to take delivery of Products provided in accordance with these Terms and Conditions, any risk of loss or damage to the Products shall nonetheless pass to you without prejudice to any other rights or remedies we have:
6.4 Where we deliver Products by installments, each installment constitutes a separate contract; this does not apply to consumers. We are only entitled to make delivery by installments where reasonable. If you are an entrepreneur, any defect in any one or more installments shall not entitle you to cancel any subsequent installments.
6.5 If you are a consumer, the risk of accidental loss of or accidental damage to the Product passes to you on delivery of the Product. If you are an entrepreneur, the risk of accidental loss of or damage to the Product passes to you when the Product is placed in the possession of the carrier, but no later than when it reaches your possession.
If you are an entrepreneur, you are responsible for checking Products to the customary extent immediately upon delivery and verifying that they are in a satisfactory condition, in accordance with their description, and complete. You can only assert rights arising from defective Products or short delivery, if you notify us of the situation in writing no later than five (5) working days after the receipt of the Products or, if the defect or short delivery was not identifiable, as soon as it has been noticed.
Where any Product supplied by us is or includes software, this software is licensed by us or by the relevant licensor subject to the relevant end-user license agreement or other license terms included with the software and/or the Product ("License Terms"). Such software may not be copied, adapted, translated, made available, distributed, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that (i) this is permitted in the License Terms, or (ii) applicable law, in particular Section 69 d (2) and (3) as well as Section 69 e of the German Copyright Act, expressly mandates such a right.
9.1 We shall be liable for intent and gross negligence on the part of our institutions and agents, and, regardless of the level of liability, for damages arising from death, personal injury or damage to health.
9.2 We shall furthermore be liable for ordinary negligence on the part of our institutions and agents in the event of impossibility, performance default, non-adherence to a warranty, or the infringement of any other fundamental contractual obligation. Fundamental contractual obligations are those which must be fulfilled for the contract to be duly executed and for which compliance can be relied on as a matter of course. In such cases our liability is limited to the compensation amounts typically foreseeable upon entering into the relevant contract.
9.3 Liability on our part beyond that set out in 9.1 and 9.2 of these Terms and Conditions shall be excluded. This applies to all claims arising from an infringement of contractual obligations and claims resulting from tortious acts.
9.4 All limitations of liability according to 9.1 through 9.3 of these Terms and Conditions shall apply in favor of our institutions and agents.
9.5 Claims under the Product Liability Act remain unaffected.
9.6 Sections 478 and 479 of the BGB remain unaffected.
10.1 Title to Products shall not pass from us to you until payment in full of the price in respect of the order, including any interest or other payments due in respect of those Products, is made. Until that time, you shall store the Products in such a way as to enable them to be readily identified as our property at any time, and keep proper and accurate records to enable us to distinguish Products for which payment has been made in full from those Products for which payment is outstanding. You shall not seize the Products or transfer the Products by way of security. As a consumer, you are not entitled to resell Products until you have paid the order price in full.
10.2 As an entrepreneur you are allowed to sell Products as part of your normal business activities before the title is passed. In this case, you shall hold (on a fiduciary basis) all proceeds of such sales or of other legal grounds in trust for us and in a separate account. You undertake immediately upon being so requested by us to assign to us all rights in respect of those proceeds and that separate account and/or all rights and claims which you may have against any customers arising from such sales until payment is made in full. You further undertake not to assign such rights and claims to any third party without our prior written consent.
10.3 We reserve the right to repossess the Products in the event of default and the presence of the prerequisites justifying rescission, and thereafter to resell the same. Repossession by us simultaneously constitutes a declaration of rescission.
You shall indemnify us against any and all liabilities, claims, and costs incurred by or made against us as a direct or indirect result of us performing services or carrying out any work on or to the Products where this has been done to your or your representative's specific requirements or specifications causing an infringement or alleged infringement of any proprietary rights of any third party. This shall not apply if and insofar as the infringement of the third party property rights is not attributable to you.
12.1 If any license or consent of any government or other authority is required for the acquisition, carriage or use of the Products by you, you shall obtain such license or consent at your own expense and if necessary produce evidence to us on demand. Failure so to do shall not entitle you to withhold or delay payment for the Product. Any additional expenses or charges incurred by us resulting from such failure shall be borne by you. For consumers, this does not apply with respect to a consent or other permit for carriage.
12.2 Products sold to you under these Terms and Conditions may be subject to export control laws and regulations in the Territory or other relevant jurisdiction where you take delivery of or use them. You shall be responsible for complying with these laws and will not do anything to breach them.
12.3 Items entering the European Economic Area (EEA) from outside over a certain value may be subject to customs charges (e.g. where costs are in excess of your personal import allowance). You may be subject to customs charges, import duties, and taxes, levied when the Product reaches your specified destination. Any such additional charges for customs clearance or import duties or taxes must be borne by you since we have no control over what these charges are. You should contact the local customs office in the relevant jurisdiction for further information on customs policies or duties.
Any notices or other communications in relation to our contract may be issued by hand delivery, pre-paid post, fax or e-mail to the latest address and contact that one party has notified in writing to the other. This will also be the address for service of legal proceedings in the manner prescribed by law.
14.1 We will observe applicable data protection laws and will not use information that will or can be used to personally identify you other than as set out in our Privacy Statement.
14.2 We hereby undertake to only transmit your information, including your personal information, to the relevant publisher, licensor, or supplier of Products and services ordered hereunder if this is necessary in order for them to register the Products you ordered under these Terms and Conditions because such registration is an essential prerequisite for asserting your right to the warranty, technical support, or other services.
15.1 You shall not assign your rights to third parties under these Terms and Conditions.
15.2 All of our Products and services are provided subject exclusively to these Terms and Conditions. Terms and Conditions set out by you that contradict or deviate from these Terms and Conditions shall only apply if they are expressly accepted by a member of the Board of Management, an authorized representative, or a person empowered by us to do so. Your Terms and Conditions shall also be non-binding, even if their validity has not been expressly rejected. Tacit recognition of your Terms and Conditions by implied conduct shall be excluded.
15.3 Any forbearance, delay or indulgence by either you or us to enforce any provision of this Terms and Conditions shall not constitute a waiver of these rights.
16.1 These Terms and Conditions shall be governed by the substantive law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
16.2 To the extent that you are a merchant, a body corporate under public law or a special fund under public law, the parties submit to the exclusive jurisdiction of the Courts in Ansbach or Nuremberg for all disputes directly or indirectly arising from this agreement. The official language used in court and the language used in extrajudicial settlement proceedings shall be German.
