General Terms and Conditions
For GERMANY, the German version of these GTCT shall prevail, which you will find here: Allgemeine Geschäftsbedingungen.
Please read the following General Terms and Conditions (“GTCT”) carefully. By ordering goods or services through this website or by registering on or with this website you agree that these GTCT shall apply exclusively to the business or legal relationship between you as our customer and us.
Sascha Bienert, TwiddleFactor
Turmstraße 80, 10551 Berlin
Phone: +49 (0)30 70089148
Updated: August 01, 2009
1. SCOPE OF APPLICATION
1.1 The GTCT shall apply to all products, goods, and services which are delivered, brought or rendered by us, the vendor TwiddleFactor, Sascha Bienert, Turmstraße 80, 10551 Berlin, Germany (hereinafter also referred to as “twiddlefactor.de”, “we” or “us” or similar), through this website to you, the customer (hereinafter also referred to as “you” or “your” or similar). The term “product(s)” shall also include works, software and services. The term “customer” shall include entrepreneurs and consumers.
1.2 By ordering goods or services through this website or by registering on this website you agree that the GTCT shall apply exclusively to the business or legal relationship between you as our customer and us. We will accept no other terms and conditions by our customers or third persons. Even our silence does not make such other terms and conditions part of our business or legal relationship with you.
1.3 We offer our goods and services only to adult persons, i.e. usually persons 18 years of age or older.
1.4 Please be aware that there will be no 100% guarantee that this website will constantly be available at all times. However, we will use our best efforts to make this website available to you as far as this is technically possible and reasonably achievable.
1.5 We have the right to reasonably change our services to the customer or to stop offering any services to customers in the future.
1.6 We may reasonably revise and update the GTCT at any time by posting such revised or updated GTCT on or at this Site. Any changes to these GTCT will become effective upon posting such revisions or updates. In addition, we will inform you about such changes and instruct you, if necessary, about your right of withdrawal.
2. OFFER, COMPLETION OF THE CONTRACT
2.1 If we mention prices on this website or in our written material, or if we describe our services therein, we want to only invite you to make an offer to buy our products (so called invitatio ad offerendum). The offer is then your order of one or more of our products with us. We are free to accept or not to accept your offer. Once we have accepted your offer, we have reached an agreement with you. Before this moment, we are free to change the prices for our products and other terms and conditions.
2.2 After we have received an offer (order) from a customer, we have 14 days time to accept or not to accept the offer. Silence from our side will mean that we did not accept the customer’s offer. The customer can order from us only online via our website.
2.3 The offer of a customer will be accepted from us usually in one of the following ways:
– an order confirmation of the customer’s offer or
– we send out the ordered product or the license key or the access data to the customer.
2.4 Before we accept your offer, you may receive an automatically created e-mail summary of your offer. Please note, that this summary e-mail is not an acceptance of your offer. This e-mail only summarizes all content of your offer. An order confirmation (acceptance of your offer) will instead have the headline “Order Confirmation.”
3. WITHDRAWAL INSTRUCTIONS / INFORMATION ON RIGHT OF WITHDRAWAL (applies to consumers from Germany, Austria, the United Kingdom, the Netherlands and Italy only)
I. Right of withdrawal
If you are a consumer, then you have the right to cancel your order after delivery (receipt of the goods, if any, and receipt of these withdrawal instructions in written form by the recipient). The following cancellation periods shall apply in this instance:
Germany: 2 weeks after receipt of the ordered goods, if any, and receipt of these withdrawal instructions in written form by the recipient
Austria, the United Kingdom and the Netherlands: 7 working days after receipt of the goods, if any, and receipt of these withdrawal instructions in written form by the recipient
Italy: 10 working days after receipt of the goods, if any, and receipt of these withdrawal instructions in written form by the recipient
The cancellation requires no substantiation and must be carried out either in writing or via another permanent data medium (e.g. via fax or e-mail) to be addressed to:
Sascha Bienert, TwiddleFactor
Turmstraße 80, 10551 Berlin
Phone: +49 (0)30 70089148
Please, if possible, specify your order data in your cancellation request. The prompt return of goods or dispatch of the letter of cancellation is sufficient to ensure that the cancellation period is upheld.
The right of withdrawal shall lapse
– in the event that ordered software or audio and video recordings have been unsealed; or
– in case we had begun with our ordered services with your consent before the cancellation period had ended; or
– in case the exercise of our services was initiated by you.
This right of withdrawal does not apply to contracts for the delivery of goods which we produced according to specifications of the customer or which were clearly tailored to the personal needs of the customer.
II. Consequences of withdrawal
In case of a withdrawal each party shall return what they have received in the course of the contract to the other party including any gains such as interests. Insofar as goods have been damaged or got lost and therefore cannot be returned in the same condition as received such party being responsible may be liable for damages unless such damage might have also occurred when testing the goods onsite as, for example, in a shop. Liability for damages can be avoided if you do not start using the goods like an owner and refrain from any activity which could deteriorate the value of the goods to be returned.
Applies to Germany only: the consumer shall bear the costs incurred when returning goods up to a gross order value of 40 EUR, if the delivered goods are identical with the ordered goods; we are obliged to bear these if the order value exceeds this amount or if the ordered goods are not identical with the delivered goods.
Applies to Austria, the United Kingdom, the Netherlands and Italy only: the consumer is obliged to bear the cost of returned goods.
Goods which cannot be sent by post will be collected from you by us.
END OF WITHDRAWAL INSTRUCTIONS
4. YOUR WARRANTIES AND REPRESENTATIONS
You warrant and represent that all the information you have given to us when ordering a product from us, including bank account data, credit card information, etc., is current and accurate and that this information is sufficient for the execution of your payment and your product order by us.
5. PRICES AND PAYMENT TERMS
5.1 As far as nothing else is expressly agreed upon between the parties, the list price at the time of delivery shall have to be paid by the customer. In case of doubt, not the prices on our website or in an automatic summary e-mail (see 2.4) shall be decisive, but the price named or specified in our acceptance of your offer. In case the price named or specified in an order confirmation (acceptance) differs from the price in your offer, our acceptance does not lead to a contract, but shall be deemed to be a new offer to the customer which the customer is free to accept.
5.2 We are entitled to retract from granted discounts any time before the acceptance of your offer, in particular because of cost increases for materials, carriage or labour, taxes, duties, higher exchange rates, etc. The provision in 5.1 (sentences 2 and 3) shall apply accordingly.
5.3 As far as nothing else is expressly agreed upon between the parties, the currency as noted or specified on this website shall be decisive.
5.4 All prices are not negotiable, once there is a binding contract between the parties.
5.5 We offer different payment options to our customers. As far as nothing else is expressly agreed upon between the parties and nothing else is specified in our price-lists, if any, the customer has the option to pay (1) via the payment system PayPal, or (2) via credit card which we will charge with the consent of the customer.
5.6 All payments have to be made free from any bank charges.
5.7 The offsetting of payments is permitted only if the money counterclaims are legally ascertained by a court of law of good jurisdiction or are not in dispute between the parties. In addition, the customer is authorised to the exercise of a retention right only if his / her counterclaim is based on the same contractual relationship.
5.8 If the customer is in default with his / her payment, we are entitled to charge interest on arrears at the rate of 5 percent points above the base interest rate as announced by the European Central Bank p.a. If we can prove higher damages in case of such a default, we are entitled to such higher damages. In case of a default of the customer we are only obliged to other deliveries to the customer if the customer has paid the entire open amount and has given us security for other deliveries.
6. BANKRUPTCY ETC.
In case you go bankrupt, you receive a court order to liquidate your assets, or we have reason to believe that you are not or will not be able to pay your debts when they are due, we are entitled to do the following:
– We may stop all further deliveries and call back all deliveries in process
– We may reject any more orders from you and retract from existing contracts
– We may stop all services we had granted to you to your benefit
7. SOFTWARE – LICENSE TERMS
7.1 EULA PREVAILS
If the product delivered to you by us exists of software or contains such, then this software is licensed by us or by the respective licensor according to the respective end user license agreement (EULA) or other licence terms. This software may be used, copied, publicly performed, publicly displayed, etc. only in a way as it is expressly permitted (i) by EULA or other license terms or (ii) by the applicable statutes or laws.
7.2 IN CASE THERE IS NO EULA
In case there is no EULA and there are no other license terms connected with the respective software product we offer or sell to you, the following software license terms shall apply:
Effective upon payment according to Section 5. of these GTCT, and provided that you are and remain in compliance with the terms of these GTCT, we grant to you a perpetual, non-exclusive, non-transferable license to use the respective software object code and accompanying documentation, if any.
7.2.2 Backup Copies.
You are allowed to make one (1) backup copy of the software and accompanying documentation for back-up purposes. You shall reproduce and include on each copy and on each partial copy of the software or documentation any copyright notice and proprietary rights legend contained therein, as such notice and legend appear in the original.
7.2.3 Intellectual Property Rights.
You acknowledge that the software and its structure, organization, and source code constitute valuable trade secrets of us. We retain and reserve exclusive ownership of all intellectual property rights in the software, including any derivative works or modifications thereof. You agree that the source code of the software is not part of the software license.
You agree not to (i) copy, perform, distribute, modify, adapt, alter, translate, or create derivative works from the software; (ii) merge the software with other software; (iii) sublicense, lease, rent, or loan the software to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the software; or (v) otherwise use the software except as expressly permitted in these GTCT or by the applicable statutes or laws.
7.2.5 Notice to U.S. Government End Users.
For U.S. Government End Users, twiddlefactor.de and you agree to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in these GTCT. The software and documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved by us under the copyright laws of the United States (and other countries).
7.2.6 Software Updates and Upgrades.
You shall have the right to obtain access to free-of-charge Updates developed by us, in case we will develop or offer any such Updates. You may also buy Upgrades to be developed by us, in case we will develop or offer any such Upgrades. You have no right that we produce, develop etc. such Updates or Upgrades. It is entirely our own decision, if we want to offer Updates and/or Upgrades in the future for our software. “Updates” shall mean software versions produced to correct errors or to accommodate upgraded versions of operating environments, and “Upgrades” shall mean software versions produced which add new functionality to existing software. Updates and Upgrades obtained by you herein shall be governed by these GTCT.
8. LIMITATION OF LIABILITY
8.1 Our liability is excluded or limited concerning injuries and damage to life, body or health, unless we or our legal or other representatives were acting with intent or negligence concerning the acts or omissions that led to the injuries.
8.2 For all other injuries our liability is excluded or limited, unless we or our legal or other representatives were acting with intent or gross negligence concerning the acts or omissions that led to the injuries.
8.3 If a statute holds a provision we cannot deviate from, then this statutory provision shall apply (e.g. § 14 German Product Liability Code).
8.4 PLEASE BE AWARE OF THE ADDITIONAL TERMS AND CONDITIONS CONCERNING LIMITATION OF LIABILITY IN THE RESPECTIVE END USER LICENSE AGREEMENTS (EULA) OR OTHER SOFTWARE LICENSE TERMS. Please also be aware that our software called “Foodurama” does not replace a reasonable healthy diet. Please in all cases also check with your doctor or a nutrition expert what nutrition best fits to you and your body and a healthy lifestyle.
8.5 You have the obligation to do everything what is reasonably possible to avoid or limit damages or the amount of damages. Also, you have the obligation to make back-up copies of all files which you have received from us, so that lost data can be restored or reinstalled with a minimum amount of extra expenditure. If you do not comply with this provision, a court of law may shorten the amount of damages which you may claim against us. See, e.g., § 254 German Civil Code.
9. INDEMNITY, RIGHTS OF THIRD PERSONS
You agree to indemnify us from all liability as well as from all demands or costs which are asserted, brought or claimed against us by third persons as a result of your infringement of rights of third persons.
10. YOUR RIGHTS IN CASE WE DELIVERED A DEFECT PRODUCT TO YOU
10.1 Both Parties understand that, considering the current state of the art, it is not possible to entirely exclude technical software problems, to manufacture faultless software or to cure every defect.
10.2 If the purchased product is defect, even considering Section 10.1 of these GTCT, the guarantee regulations as provided for by law or statute in the respective country shall apply, unless the following provisions provide for different regulations.
10.3 A product is defect if it is not of the agreed upon nature or quality or injures copyrights or other rights of third persons. But please see also Section 10.1 of these GTCT.
10.4 A product, in particular software, is not defect if it suffers from compatibility problems with other software or hardware, unless both parties have expressly agreed upon otherwise.
10.5 We will not be liable for any mishandling, misuse, misinstallation etc. of the product on your side. We are also not liable if you do not heed or follow instructions by the manufacturer of the product.
10.6 You lose the right to use and/or enjoy the product once you exercise a right to rescind the contract. In such a case, you need to immediately delete all product software bought from us from all of your hardware and destroy all software copies and other copies of the product. You agree that after the exercise of a right to rescind the contract you will declare and swear in writing that you have carried out or will immediately carry out all the acts which are required from you in 10.6.
11. REPORTING OF DEFECTS
11.1 You are obliged to immediately report or indicate to us defects of the ordered product(s) in writing (to: TwiddleFactor, Sascha Bienert, Turmstraße 80, 10551 Berlin, Germany), concerning evident defects at the latest after five working days after receipt of the product(s), and concerning hidden defects at the latest after one year after receipt of the product(s).
11.2 Once you have discovered a hidden defect, you are obliged to immediately report or indicate to us this discovered defect in writing to the under 11.2 mentioned address.
12. APPROVALS, EXPORT, DUTY FEES AND TAXES
12.1 If a government or another authority of your country or any other country requires an approval or license for the purchase, transport or use of the product, it is incumbent upon you to get this approval or license at your own expenses and to prove these approvals and licenses to us, if requested by us. Non-performance of this obligation does not entitle you to hold back or delay any payment of the product to us. You agree to bear all our costs and expenses which result out of any non-performance of this obligation.
12.2 The products may have to comply with certain exportation controlling laws or exportation controlling regulations in the country of delivery or any other countries. It is incumbent upon you to obey these laws and regulations and to do nothing what could offend against them.
12.3 When certain products are imported into the European Economic Area (EEA), the authorities may impose certain duty fees and taxes on you. We want to inform you that all such fees and taxes have to be paid by you only. You can find out more information about duty fees and taxes, for example, from a customs office responsible for your country.
14. NO ASSIGNMENT
Neither these GTCT nor any rights or membership granted to you hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
15. ENTIRE AGREEMENT, NO WAIVER
15.1 These GTCT constitute the entire agreement between us and you with respect to your access and use of this website and the content contained in the GTCT, and your membership with this website, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of these GTCT shall be binding unless in writing and signed by both parties. You acknowledge, represent and warrant that you have read these GTCT and agree to be bound by them as part of and in consideration of using this website and the agreed upon services.
15.2 Failure by either party to enforce any provision of these GTCT will not be deemed a waiver of present or future enforcements of this or any other provision. No waiver of one breach shall constitute a waiver of subsequent breaches of the same or of a different nature.
16. GOVERNING LAW, JURISDICTION, SEVERABILITY
16.1 Governing law shall be in all cases with respect to all matters concerning these GTCT, our EULA, our license terms, assignment terms or assignment guidelines the law of the Federal Republic of Germany, excluding all provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.2 The courts in Mainz, Germany, shall have exclusive jurisdiction in all cases with respect to all matters concerning these GTCT, our EULA, our license terms, assignment terms or assignment guidelines.
16.3 If any provision of these GTCT, our EULA, our license terms, assignment terms or assignment guidelines shall be held to be invalid or unenforceable for any reason, or any portion thereof, the remaining provisions shall continue to be valid and enforceable to the maximum extent permissible and the remainder of these GTCT, our license terms, assignment terms or assignment guidelines will continue to be in full force and effect.
17. Consumer Rights Information – California Residents Only
This Section applies only to California residents. In compliance with Section 1789 of the California Civil Code, please note the following:
Name of responsible person / entity:
Sascha Bienert, TwiddleFactor
Turmstraße 80, 10551 Berlin
Phone: +49 (0)30 70089148
Users may contact this Site at: firstname.lastname@example.org in order to resolve any billing disputes or to receive further information about this Site.
18. Complaints – California Residents Only
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.