GENERAL CONDITIONS AND INFORMATION FOR CONSUMERS ("AV")
VERSION OF: 10 June 2014
SCOPE AND APPLICABILITY
These General Conditions (“AV”) apply to any agreement relating to the purchase of products (including, yet not limited to, hardware and/or software) (“Products”) and/or the supply of services (“Services”), which are provided through this website (“Site”) by us, the provider, Digital River Ireland Ltd., Dromore House, East Park, Shannon, County Clare, V14 AN23, Ireland, (to which any reference to “us”, “we” or “our” is deemed to relate) to you, the buyer (to which any reference to “you” or “your” is deemed to relate).
If you may be regarded as a ‘consumer’ (if you have not concluded an agreement in the context of a business transaction), the provisions in this AV shall not prejudice your rights under the law in force.
As a consumer, you have the right to a “cooling-off period” in which, for any reason whatsoever, you can cancel an order without obligation to make any payment. This period runs:
For products: up to fourteen (14) working days from the delivery date of the products.
For services: up to fourteen (14) working days from the date when we accept your instructions or order.
This cancellation right:
Ceases if, with your consent, the service provision commences before the cooling-off period expires.
Ceases if you order software and you remove it from its packaging before the end of the cooling-off period or if the software is supplied used on other than a tangible medium after you have given express prior consent and declared that you waive your right of cancellation.
Is not applicable to custom-made products or modified products made or modified especially under your instructions.
Cancellation may be notified among other things in writing (including by fax or e-mail) by sending the cancellation form
appended as Annex 1 to these general conditions:
for the attention of: general manager,
Digital River Ireland Limited
Fax Number: + 353 61 230 001
Email Address: email@example.com
The notification intended in this article is deemed to have been made on the date on which it is delivered (in person) to the abovementioned postal address, on the date on which it is sent by post to the abovementioned postal address, on the date on which it is sent by fax to the abovementioned fax number, or on the date on which it is sent by e-mail to the abovementioned e-mail address.
If you exercise the aforementioned right to cancel, you must, with due diligence, look after all the products involved that are in your possession, and (at your expense) return them to us (or to a person designated by us), or keep them available for collection (in the case of a request to that end). If you have paid in advance, you will receive a refund within 14 days of notification of the cancellation.
The foregoing applies in supplement to any rights under the rules on this Site applicable to the refund and the conditions indicated hereinafter. If you require any further information about your rights, please contact customer service
OFFER, CONFIRMATION AND ACCEPTANCE
All prices, offers and descriptions given on this Site or to which this Site refers, are made based on availability and do not represent an offer. Up to the time when we explicitly accept your order (in the manner described below), they may be withdrawn or reviewed at any time.
Although we make every effort to ensure that the items shown on our Site are also actually available, we cannot guarantee that they are always in stock or immediately available as soon as you place an order. We reserve the right to refuse your order, if we are not able to process or carry it out. No liability whatsoever ensues from this for us. However, in that case we will reimburse you any sums already paid in advance.
Your order implies on offer made to us on your part to buy certain Products or Services and this offer is subject to our acceptance.
Prior to our acceptance, an automated confirmation e-mail may be generated about your order. However, such confirmation does not yet imply acceptance of your order.
Our acceptance only becomes effective and the agreement only comes into force at the time when (1) we explicitly accept the offer and we send your order or commence providing the Services and (2) we receive your credit card payment or other payment (“Acceptance”).
We do not archive your agreement. You yourself must make copies of the documents relating to your order and of these AV for your records.
We ourselves do not supply the Services that you order through our Site. These services are provided either by the party whose name and logo are shown on the Site or by another service provider. If the party concerned employs additional conditions, they will be made available to you and you must accept them before the Services are provided.
You vouch for the information that you provide within the framework of placing an order being current, accurate and adequate to enable us to carry out the order.
In placing an order, you guarantee that you have legal competence to conclude an agreement.
You must advise us immediately of any changed or missing customer details. Furthermore, you must safeguard against unauthorised use of any access codes and details that we provide you for gaining access to the Site and/or for purchasing Products.
You understand that you are purchasing the Products or Services solely for your own use and hereby declare that you are not a reseller of such Products or Services.
PRICE AND TERMS OF PAYMENT
The sums payable for the Products or Services are the prices applicable at the time of Acceptance. Although prices are shown on the Site or order confirmation, the definitive price is determined at the time of Acceptance.
Prices shown may be inaccurate due to programming or data transcription errors. If the advertised price is incorrect, or the consumer knows or ought to know that the advertised price is incorrect, , we reserve the right, as far legally permissible, to amend that price and to charge the correct market price.
At any time desired before Acceptance, we reserve the right to withdraw discounts and/or to adjust prices and fees in connection with cost increases, including, yet not limited to, increases in costs of materials, carriage or labour, increases or introductions of taxes, import and export duties or other levies, as well as changes in exchange rates. We shall also notify you of possible errors in Product descriptions or pricelists before shipping a Product or commencing a Service. If you are a consumer, you have the right to cancel your order, and you have the right to repayment of any payments already made. In such a case, should you prefer to have your order carried out, then you consent to the Product or Service being supplied according to the altered description or the corrected price or fee.
The places where we are able to supply to you are indicated on the Site (“Contract Areas
”). Unless otherwise stated, the prices and fees indicated:
Exclude shipping and carriage costs to the agreed delivery address in the Contract Areas (the delivery costs are shown on the Site), and
Include VAT or other taxes or levies (if applicable) that must be added to the price or fee payable.
Payment, including VAT or other taxes or levies, must be made before shipment and in the manner indicated on the Site.
We have credit card payments debited when the Product is shipped or the service commenced. We reserve the right to verify payments by credit card before the time of Acceptance. The means of payment that we accept are indicated on the Site.
In the event of payment based on invoicing, a term of payment of thirty (30) days applies. An invoice is payable in full and due and payable within thirty (30) days from the date shown on the invoice involved. If at any time you fail to pay a sum due and payable by the due date, we may send you a message in which we declare all sums outstanding at that time to be immediately due and payable.
Except for consumers, it is not permissible without our written consent to apply a counter-claim or other form of set-off and to deduct it from any sum payable. We reserve the right to legally enforce a payment for Products or Services at any time desired after it becomes due and payable.
Except for consumers, any credit granted to you can be adjusted or withdrawn at any time. On overdue payments we charge interest on a daily basis at the maximum percentage permitted under the applicable law with effect from the payment due date until the time of payment in full (if necessary, following a court judgement). If you are not a consumer, you indemnify us for all costs which we incur in connection with the collection of arrears.
If you apply for bankruptcy or suspension of payment, are declared bankrupt or in suspension of payment, enter into a debt settlement, a court judgement is served against you for liquidation, you perform or undergo a comparable act in connection with your debts, we have reason to believe that you are not or no longer capable of settling your debts at the time when your payment is due and payable, of if you fail to pay any outstanding sum on the due date or are in breach of or fail to fulfil these AV, then, without prejudice to any other rights that we have, we can:
Intercept products that are en route, and/or
Suspend any further shipments of Products, and/or
Stop or suspend the provision of Services, and/or
Terminate your order and any other agreements between you and us with immediate effect by means of a written notification.
Article 5 does not apply to consumers.
DELIVERY AND RISK
All delivery times and dates indicated on our Site, order confirmations, Acceptances or elsewhere represent only (non-binding) indications. While we will endeavour to achieve such delivery times and dates, we enter into no obligations to despatch Products on a particular date and/or to commence Services on a particular date and we accept no liability towards you or third parties in connection with any delays or not meeting the said delivery times and dates.
Delivery is made to a valid address within the Contract Area, which you indicate and is stated on the Acceptance (“Delivery Address”). You must verify the Delivery Address on every confirmation or Acceptance and in the event of errors or incompleteness notify us immediately. We reserve the right to charge additional costs, if the Delivery Address changes after you have placed an order.
Except for consumers, the following applies. In the event that you refuse or fail to take Products supplied in accordance with these AV, the risk of loss or damage in respect of those Products nonetheless passes to you, and, without prejudice to other rights or claims that we may have:
We are entitled to immediate and full payment for Products or Services delivered or provided up to the time of delivery, and we may continue to effect the delivery in the manner that we deem usual, or store the Products at your expense and responsibility,
At our first request, you are bound to pay all costs in connection with storing Products and any additional costs resulting from refusal or failure to accept,
With effect from thirty (30) days after the agreed shipment date, in a manner determined at our discretion, we are entitled to disclaim the products and may set off any proceeds in that connection against any payments that you may owe us.
Unless and insofar as mandatory provisions under applicable consumer law give you such competence, you are not permitted to refuse the Products in full or in part due to late delivery, unless you notify us of any complaint within seven (7) from the date of invoice or, if preceding that date, from the date of receipt, failing which you are bound to pay for the Products and/or Services supplied.
In the event that we supply Products in part deliveries, each partial delivery forms a separate agreement between you and us and any deficiency in a partial delivery does not give you the right or competence to terminate the contract as a whole, for any reason whatsoever, or to cancel any subsequent supplies or partial supplies.
Unless and insofar as otherwise provided for in these AV, the risk of loss or damage to Products passes to you at the first of the following times: the time of delivery, the time when the Product comes into your actual possession, or the time when we make it available for a despatch or shipment directed to you.
REJECTION, DAMAGE OR LOSS IN TRANSIT
At the time of delivery, you must check and inspect the Products to ensure that they are in good condition, are complete and in compliance with the description. You can return purchased Products to us in accordance with the stipulations in these AV or an applicable “Returns Policy” that is indicated on the Site.
Unless and insofar as otherwise provided for in the foregoing or in an applicable “Returns Policy”, and subject to any rights under the applicable law, which these AV cannot exclude or restrict:
We accept no liability for Products and Services and you are not permitted to refuse or reject them, save in the case of:
Damage to or loss of Products or parts thereof during transport (and only in the event that those Products are carried by our own transport facilities or by a carrier that we engage), provided that you notify us of that damage within five (5) working days from receipt of the above-mentioned Products,
Defects in Products (to the exclusion of defects caused through your action, negligence or neglect), provided that you notify us of them within thirty (30) working days from receipt of the above-mentioned Products.
Deficiencies in Service provision (to the exclusion of deficiencies caused through your action, negligence or neglect), provided that you notify us within five (5) days from when they become known.
Paragraph 7.2.1 does not apply to consumers.
We accept no liability for damage, costs or losses resulting from incorrectly installing the Products, using the Products in conjunction with other defective, unsuitable or incorrectly installed hardware, negligence, incorrect use, or any use that is inconsistent in any way with the manufacturer’s specifications or instructions.
Paragraph 7.2.2 does not apply to consumers.
In the event of a delivery not being performed or performed too late, or a deficiency or damage relating to a Product or Service, and if you are not a consumer, at our discretion, we can:
in the case of a delivery not performed or performed too late, still perform such a delayed or missing delivery, and/or
in the case of a shortcoming in the fulfilment or a deficient fulfilment of a Service, rectify such a shortcoming or deficiency, and/or
in the case of damage or defects relating to the Product and in compliance with the applicable “Returns Policy”:
where possible, repair the Product in question or, if warranted by the defect, replace it once you have sent it back to us, or;
refund you for Products that are established to be damaged or defective.
Insofar as a Product supplied consists of software or contains software (“Software”), we or the supplier or entitled party involved licence this Software to you in compliance with the applicable licence agreement for end users and any other conditions for use supplied with the Software and/or the Product (“Licence Terms”). In addition, the following applies for this:
You may not copy, modify, translate, make available to others, distribute, change, alter, de-assemble, decompile, reverse engineer or combine the Software with any other software, unless and insofar as this: (i) is permitted under the Licence Terms, or (ii) the applicable law expressly grants you such a right and that law may not be excluded contractually.
Unless and insofar as otherwise provided for in the applicable Licence Terms, you do not have a return privilege or right to refund under these AV and the applicable “Returns Policy” is not applicable, if you have opened the packaging of the Software, broken the licence seal and/or used the Software.
Unless and insofar as we have stipulated this otherwise, expressly and in writing, or in the Licence Terms, the Software is made available to you in the condition in which it is found, without any guarantee, stipulation or condition concerning the quality, suitability, performance or compliance with the description and we give no guarantee whatsoever relating to the installation, configuration or fault repair of the Software. Please consult the Licence Terms for information about the rights that you have in respect of the producer, licensor or supplier of the Software.
LIMITATION OF LIABILITY
IF AND INSOFAR AS LEGALLY PERMISSIBLE, OUR TOTAL LIABILITY PER EVENT, WHERE A SERIES OF EVENTS MUST BE TAKEN TO BE ONE EVENT, FOR ANY REASON WHATSOEVER, INCLUDING, YET NOT LIMITED TO NEGLIGENCE AND ATTRIBUTABLE FAILING, REMAINS LIMITED TO AT MAXIMUM THE VALUE OF THE DEFECTIVE, DAMAGED OR NOT DELIVERED PRODUCTS OR DEFICIENT OR NOT PROVIDED SERVICES (WHICH VALUE IS DETERMINED BASED ON THE NET PRICE CHARGED TO YOU). NOR ARE WE LIABLE FOR:
INDIRECT OR CONSEQUENTIAL LOSS, OR
COSTS OR LOSSES DUE TO THE IMPOSSIBILITY OF PLACING ORDERS, AS TOO ANY LOSS OF INCOME, LOSS OF PROFIT, LOSS OR MISCARRIAGE OF CONTRACTS, DATA LOSS OR MISSED GOODWILL OR SAVINGS.
UNLESS EXPLICITLY STIPULATED TO THE CONTRARY IN THESE AV, ALL PROMISES OR GUARANTEES (EXPLICIT OR IMPLICIT) ARE HEREBY EXCLUDED. WE ACCEPT NO LIABILITY FOR LOSSES, DAMAGE OR COSTS RESULTING FROM DEFECTIVE MATERIALS, INADEQUATE WORKMANSHIP OR OTHER CAUSES, AND EVEN IF THESE ARE CAUSED BY THE ACTIONS (OR NEGLIGENCE) OF OUR EMPLOYEES OR REPRESENTATIVES, UNLESS THE APPLICABLE LAW PROHIBITS SUCH AN EXCLUSION OR LIMITATION OF LIABILITY FOR SUCH LOSSES, DAMAGE OR COSTS.
THIS LIMITATION OF LIABILITY DOES NOT APPLY IN THE CASE OF INTENT OR GROSS NEGLIGENCE.
THE FOLLOWING ADDITIONAL CONDITIONS APPLY IN RELATION TO CONSUMERS (WHO PURCHASE PRODUCTS OTHER THAN IN THE PRACTICE OF A BUSINESS):
NO STIPULATION WHATSOEVER IN THESE AV IS DEEMED TO LIMIT OR EXCLUDE OUR LIABILITY (OR THE LIABILITY OF OUR PRODUCER, LICENSOR OR SUPPLIER), IF IN YOUR CONTRACT AREA MANDATORY PROVISIONS OF THE APPLICABLE LAW DO NOT PERMIT SUCH A LIABILITY BEING EXCLUDED OR LIMITED CONTRACTUALLY.
RETENTION OF TITLE
The Title of Products, which are the subject of an order, only passes from us to you at the time when you have paid the price or fee of the order in question in full (including any interest or other payments that are due in relation to these Products). Until you have paid all outstanding sums in full, you hold the Products on our behalf and, in compliance with that provided for in article 10.2, you must store the Products in such a way that they are clearly identifiable as our property. Furthermore, you must keep complete and accurate files, in order to enable us to distinguish the Products that have been paid for from the Products for which payments are still outstanding.
If you yourself sell Products, insofar as possible under the applicable law, you must remit any revenue from sales (on our behalf) to a separate account. You undertake at our first request to transfer all rights relating to such revenue, separate accounts, and claims that you have on your customers because of such sales until you have paid us in full in respect of such Products. Without our prior consent, you may not transfer such rights and claims to third parties.
We reserve the right (in compliance with the applicable law) to claim back Products for which payment is due and payable, were refused or for which the order has expired, and you hereby grant us (and our employees and representatives) the irrevocable right and the irrevocable authorisation to gain access to your business during normal working hours. This provision also remains effective following termination of the contract for whatever reason.
Insofar as you are not a consumer, you are responsible for and shall pay for all damages that we suffer as a result of the Services we provide, the work we do or the Products we sell, if and to the extent that this is done on the basis of specific requirements or specifications set out by you, and including among other things claims against us by third parties because of an alleged infringement of their (intellectual) rights.
The product specifications, product illustrations, drawings, details, dimensions, processing details and other information present on the Site or made available by us, represent no more than a general description of the products and not a guarantee or declaration on our part that the Products will work in compliance with them. We would refer you to the specifications or guarantee documentation of the producer for any rights that you have in this connection.
You could possibly invoke guarantees of the producer, licensor or supplier relating to the Products and for this, we would refer you to the documentation supplied with the Products. (If applicable, a “Returns Policy” can also contain procedures for the repair or replacement of defective Products supplied.)
Unless you are a consumer or it is otherwise agreed, your rights to repair or replacement of defective Products or parts thereof are not applicable if:
Products are repaired or changed by persons who do not work or were not working for the producer, our company or an authorised dealer, and/or
The defective Product or defective Products are not returned to us within 30 working days after we deliver the Products stating the alleged defects in full, and/or
Defects are (full or partly) the consequence of careless handling, improper use or maintenance, or incorrect storage or installation, or if you do not adhere to the instructions of the producer or other instructions that we issued relating to the Products supplied or made available.
PERMITS, EXPORT OBLIGATIONS AND EXPORTING
Section 13 does not apply to consumers.
If a permit or consent from a competent authority or other authority is required for obtaining, transporting or using the products, you will obtain such a permit or consent at your own expense, and, if necessary, submit evidence of this if so requested. If you do not obtain the said permit or consent, you are not permitted to withhold or defer payment. Any additional costs or surcharges that we are obliged to incur, because you fail to observe that provided for here fall to your expense.
Products that are licensed to you or are sold to you under these AV can be subject to export legislation and regulations, which apply within the Contract Area and other territorial jurisdiction where they are delivered or used. You must adhere to such legislation and regulations at all times and not act contrary to them.
All items that enter the European Economic Area (EER) and that exceed a certain value are subject to customs duties or other levies (for example, if the costs exceed the admissible import value for personal use). You can be liable for customs duties, import levies or taxes, which are levied at the time when the Product reaches the destination indicated by you. You must settle such customs duties, import levies or taxes, since we are unable to exercise any control over these whatsoever. You must contact the customs authorities in the relevant territorial jurisdiction for more information about customs policy or customs costs.
If you wish to contact us in connection with these AV, you must use the contact details given in article 1.5.
PERSONAL DATA AND YOUR PRIVACY
We adhere to the prevailing legislation concerning the protection of personal data and do not use any information with which we identify you or are able to identify you in person (“Personal Data
”) other than as stipulated in our Privacy Statement
The following applies in connection with the security of orders that you have placed:
Our secure server codes all Personal Data, including the credit card numbers and addresses. This means that the characters that you enter are converted into cryptographic code that is then sent via the Internet in secure form.
If you are not a consumer and your bank or card organisation holds you liable for costs in connection with an unauthorised use of your credit card, in respect of such a liability, we shall pay you a maximum compensation of €75, on condition that such unauthorised use was not caused through your own fault or negligence (or by someone acting on your behalf).
Our liability by virtue of this condition applies up to a maximum sum of € 75 on credit card purchases that you make through our secure servers, unless you are a consumer. In the case of unauthorised use of your credit card, you must always report this to your card supplier in compliance with its procedures.
You are not permitted to transfer your rights and obligations arising from these AV, or to encumber them or to attempt to do so.
We are not liable to you by virtue of this agreement or otherwise for compensating losses or damage that you could suffer directly or indirectly because of a non-attributable failing on our side, including because we are not capable of, are prevented from or are delayed in fulfilling our obligation because of circumstances that can be deemed force majeure, including (yet not limited to) war, riots, civil unrest or uprising, government action, explosions, fire, flooding, accidents, strikes, lockouts, trade disputes or interruptions of work, the failure of a factory or machines, interruption or delay in the supply of electricity or materials. In such cases, we are permitted, at our discretion, to cancel your order and refund any payments that you have made.
Paragraph 16.2 does not apply to consumers.
These AV replace all earlier agreements and working agreements made between us verbally or in writing, explicitly or implicitly. These AV take precedence over stipulations or conditions referred to elsewhere or ensuing from commercial practices or customs. Every possibly applicable stipulation or condition is hereby excluded, if and insofar as possible under the applicable law. If and insofar as possible under the applicable law, we reserve the right to change these AV without prior notification.
Paragraph 16.3 does not apply to consumers.
The rights and powers by virtue of these AV are not affected by partial exoneration, omission, delay, or consent of a request made by you or by us relating to these AV, nor by granting deferment.
Unless you are a consumer and if and insofar as we have set this out in written form signed by an authorised person, we do not relinquish our rights by virtue of the conditions of these AV Relinquishing our rights in the case of an infringement of or failing in any condition does not affect our rights in the event of a subsequent infringement or failing.
Unless you are a consumer and if, for any reason whatsoever, we believe that a judicial body has stipulated that (part of) a stipulation in these AV is unlawful, reversible or void under the law within a territorial jurisdiction, then the following are applicable:
It will have no effect on the applicability of this stipulation in other territorial jurisdictions where the said law is not applicable, and
It will have no effect on the applicability of the other conditions under these AV in the relevant territorial jurisdiction, and the present stipulations will remain fully effective without change.
APPLICABLE LAW AND COMPETENT COURT
The law of the Netherlands applies to these AV (including their validity and observance). Unless you are a consumer, all disputes arising out of or related to these AV shall be placed exclusively before the competent court in Amsterdam.