General Terms and Conditions
Managing Directors Daniel Schnadt and Nonito Capuno
(hereinafter referred to as "the Gambio GmbH").
Register Court: Local Court Bremen, HRB 26426 HB
VAT ID No.: DE263776189
phone: +49 (0) 421 - 22 34 678
fax: +49 (0) 421 - 388 989 69
1. Scope of applicability
These general terms and conditions apply to all declarations of intent, agreements and contractual actions or actions similar to legal transactions between the Gambio GmbH and its customers. It is hereby objected to any counter-confirmations of customers with reference to their own terms and conditions; they will not become part of the agreements, unless expressly confirmed in writing by the Gambio GmbH.
2. Subject of the contract; conclusion of the contract
2.1 The Gambio GmbH offers to the customers within the framework of the agreement software to run their own online shops as well as appropriate support services (see clauses 4 and 7 et seq.) The software package "Gambio GX3" consists of the shop software licensed under the GNU General Public License, version 2 (GPL), the software "StyleEdit" as well as "G-Protector", to which the Gambio GmbH has exclusive rights of use, as well as other modules, which are also not licensed under the GPL; the software package "Gambio GX3" is provided to the customers free of charge. The support services are provided to the customers against payment of a fee. In addition, the Gambio GmbH provides a blog and a forum, both free of charge, in which the customers can interact with other customers (see clause 14.5).
Moreover, the Gambio GmbH reserves the right to provide to the customers a wiki relating to their products.
2.2 Any information published on the website of the Gambio GmbH shall not constitute a binding contract offer. By placing their orders (by clicking on the button "purchase now" on the Gambio GmbH website or by any otherwise request), the customers place a binding offer (request) to conclude a contract.
2.3 A contract is concluded only with the acceptance of the request by the Gambio GmbH, which is declared either by sending a confirmation e-mail or implied by sending the shop software. Without prejudice to the right to refuse a customer without indicating reasons, the Gambio GmbH will declare the possible acceptance at the latest within 10 days after receipt of the customer's request.
2.4 Upon conclusion of the contract on the internet page of the Gambio GmbH, the automatised acceptance by the Gambio GmbH takes place via confirmation e-mail immediately after receipt of the order under the following resolutory condition: The examination by an employee of the Gambio GmbH must not reveal that the Gambio GmbH has previously terminated a contractual relationship with the customer due to non-contractual behaviour (e.g. according to clause 13.2).
3. Information concerning the exercise of the right of withdrawal of the consumer
If the customer is a consumer within the meaning of sec. 13 German Civil Code, i.e. a natural person who concludes a legal transaction for purposes that are outside his/her trade, business or profession, there is a statutory right of withdrawal, on which the Gambio GmbH informs as follows:
Information on the right of withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods, or in the case of a service contract or a contract on the supply of digital contents that are not supplied on a physical data carrier from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us (The Gambio GmbH, Parallelweg 30, D-28219 Bremen, fax: 0421-38898969, e-mail email@example.com, phone: 0421-2234678)) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. You can also electronically fill in and submit the model withdrawal form or any other unequivocal statement on our website [insert Internet address]. If you use this option, we will communicate to you an acknowledgement of receipt of such a withdrawal on a durable medium (e.g. by e-mail) without delay.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest. You shall send back the goods or hand them over to us without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us.The deadline is met if you send back the goods before the period of 14 days has expired. You will have to bear the direct cost of returning the goods. You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
The right of withdrawal does not apply to contracts of the supply of audio or video recordings or computer software if the sealing has been broken after supply.
Version of: 13 June 2014
4. Prices of and payment for support
4.1 The indicated prices refer to the support only.
4.2 The fee for the support is due in advance.
4.3 The obligation to pay exists regardless of whether and how often services are actually used.
5. Licensing of the software package "Gambio GX3"
5.1 The Gambio GmbH provides free of charge to the customers the software package "Gambio GX3" consisting of GPL-licensed shop software and the proprietary software "Style-Edit" and "G-Protector", as well as other modules which are not GPL licensed (hereinafter referred to as "software"). A detailed overview of the functions of the software can be found on the website of the Gambio GmbH under http://www.gambio.de/Shopsoftware/Funktionsuebersicht.html.
5.2 After conclusion of the contract, the customer receives the opportunity to download the software from the website of the Gambio GmbH.
5.3 In case the software is accidentally deleted or becomes otherwise unusable, the customer can obtain the possibility by the Gambio GmbH to re-download the software.
5.4 The software "Gambio GX3" consists of a shop system, which is licensed by the respective rights owners under GNU General Public License, version 2 (GPL), and other modules ("StyleEdit", "G-Protector" and others), which are not licensed under the GPL. The Gambio GmbH grants to the customers a simple, non-transferable right of use for their own shop to the software "StyleEdit" as well as "G-Protector" (see clause 2.1). The components that are licensed under the GPL are summarized in the "shop system" folder. The complete corresponding source code of the software licensed under the GPL and the GPL license text are provided to the customer together with the software (php programming). In addition, the license text of the GPL is available under http://www.gambio.de/hinweise/gpl.html. If customers like to use the shop system beyond the mere use for their own shops, the customers can do so with regard to the software licensed under the GPL in accordance with the conditions of the GPL. To this extent, these terms and conditions do not apply. In order to obtain a license for "StyleEdit" as well as "G-Protector", which goes beyond this clause 5.4, the customers have to contact the Gambio GmbH.
5.5 The software described under 5.4 is provided to the customers by donation; in this respect, the Gambio GmbH excludes any warranty, unless the defect was fraudulently concealed.
6. Contract period; extraordinary termination
6.1 Unless agreed otherwise, the contract period for the support is 12 months and shall automatically terminate upon expiration of the contract period.
6.2 The contract period starts with the initial support request after the order, however, at the latest with the receipt of the data carrier on which the software is contained or with receipt of the access to download the software.
6.3 Without prejudice to the right of both parties to terminate the contract for good cause, an ordinary termination is excluded. Good cause exists if the continuation of the contractual relationship until the end of the aforementioned contract period
cannot be expected by the terminating party, taking into account all circumstances of the individual case and weighing the interests of both parties. A good cause for the Gambio GmbH is also the cases mentioned in clause 13.2.
6.4 In the case of extraordinary termination the Gambio GmbH returns the payments corresponding to the remaining contract period, rounded up to the month; for example, in case of a contract period of 12 months and a termination after five months, payments would be returned for seven months. In case of premature termination of the contract, the customer must immediately return any delivered data carrier and accompanying material to the Gambio GmbH.
7. Support service description; warranty
7.1 Support services to be provided by the Gambio GmbH include the e-mail and telephone support for customers with problems relating to
the application of the software in accordance with clause 8, error-handling support in accordance with clause 11,
the provision of updates in accordance with clause 9, and
the update of the software documentation in accordance with clause 10.
7.3 The Gambio GmbH provides support services to the above extent for the customers and performs it carefully. The warranty depends on the statutory provisions. In this respect the Gambio GmbH is responsible for the provision of support services in the contractual scope. As far as not expressly agreed upon between the parties, the Gambo GmbH does not warrant and guarantee that the support services will lead to a specific result.
8. E-mail and telephone support
8.1 E-mail and telephone support means that the Gambio GmbH renders advice to customers with respect to questions or problems relating to the software, i.e. in particular in case of application problems, malfunction, errors or other cases of difficulties in connection with the programme flow of the software, e.g. if the software does not fulfill its functions, supplies wrong results, cancels runs in an uncontrolled manner or otherwise does not work functionally.
8.2. The support is granted only for a webshop operated with the software. Should the customer operate several webshops with the software, the support is rendered only for the webshop to which the first request refers. The customer is obliged to indicate the webshop to which the request relates.
8.3. Primarily, the support is provided by way of e-mail support. Customers shall exclusively address their requests to the Gambio GmbH by e-mail to firstname.lastname@example.org and in this respect have to consider their obligation to cooperate pursuant to clause 12. In principle, the Gambio GmbH will reply to requests by e-mail.
8.4 Depending on the kind of customer request, the Gambio GmbH decides from case to case, whether it replies to the request by conversation via telephone instead of using e-mail. If the case nevertheless persists after answering the request of the customer and consultation by the Gambio GmbH, the telephone support basically is available to the customer under
the service number 0421-2234 678
from Monday through Friday between 9:00 am and 6:00 pm. If the immediate handling of the telephone request is not possible, a callback is made as soon as possible. Telephone inquiries which the customer places by ignoring clauses 8.3 and
8.4 will be rejected.
8.5 The Gambio GmbH exclusively is obliged to render support for the software as it was made available to the customers in the current version in the sense of clauses 5 and 9.3. With regard to amended shop software or shop software extended by a foreign code, products of other manufacturers as well as for any other software (operating system, database, etc.) no support shall be rendered. However, by
separate agreement with the customer the Gambio GmbH can provide extended support or maintenance services for such software or products (cf. clause 15).
9.1 The customers are provided with improvements and advancements of the software (referred to as "update" in the contract) for the contractual period without additional costs. Usually, the updates are made available by offering them as download on the website of the Gambio GmbH.
9.2 The customers are obliged to install and use the updates, provided that no unreasonable disadvantage is associated for the customers by doing so. If the new update requires that the database of the webshop is newly introduced in the updated version, this is not considered an unreasonable disadvantage.
9.3 If an update is made available to the customers, the services under this agreement are restricted to the software in the version updated by the update. In particular, the obligations pursuant to clauses 8 and 11 only apply to the updated version. In case the customer still insists on using an older version, the additional support will be charged separately (cf. clause 15).
9.4 The Gambio GmbH is not obliged to publish updates.
10. Update of the documentation
The Gambio GmbH updates the documentation for the software if there is a significant change of the scope of functionality or the operating procedures of the software or if there is an error in the documentation.
11. Troubleshooting support
11.1 Although the Gambio GmbH is not obliged (see clause 5.5), it will strive nevertheless to fix the software errors that are detected during the support and to provide the customers with a version of the software in which the detected problem does not occur.
11.2 The Gambio GmbH is not obliged to correct errors if their corrections would require a disproportionate effort compared to the error-related loss of function. The Gambio GmbH is neither obliged to reprogramme substantial parts of the programme, nor does it owe success in case of error correction.
11.3 In case the correction of the error incurs disproportionate costs, both parties may cancel the contract in accordance with clause 6.3.
11.4 An error in the sense of that provision does not exist if the disorder is
- due to a modification of the software by the customer
- due to improper handling of the software or a breach of duty by the customer, e.g. non-compliance with the user manual or operating instructions, or
- due to force majeure.
12. Customers’ obligation to cooperate
12.1 The customers are obliged to contribute to the implementation of the support. In particular, the customers must appoint in writing a responsible contact person, who has all decision-making powers and authorities for the purpose of the implementation of this agreement, who in case of error messages of the software may observe occurring symptoms in detail, previous operating procedures and the used hardware and software environment, as well as can record any other information relevant for error-correction and may provide the Gambio GmbH with this documentation, who may follow the instructions by the Gambio GmbH in the course of error-search and correction and who applies updates of the software provided by The Gambio GmbH for error-correction, which contain bug fixes, provided that no unreasonable disadvantage is connected therewith.
12.2 Customers have to place their first request for any single support case by e-mail (see clause 8.3).
12.3 Further, the customers shall grant access to Gambio employees authorised for the implementation of support to the system on which the software is stored or
12.4 Before installing the software as well as before the installation of updates and before using advice rendered by the support team as well as otherwise in regular intervals, the customers shall secure all relevant data.
13. Violation of obligation to cooperate and termination of the contract
13.1 If the customers violate their obligations to participate in accordance with clause 12, the Gambio GmbH is released from its obligation to support in the concerned support case (clauses 8 and 11).
13.2 The Gambio GmbH has the right to extraordinary terminate the contract in accordance with clause 6.3 before expiration of the contract term without notice for good cause. In particular, such a reason can be if the customer uses the support in an excessive or abusive manner. This, for example, is the case if the customer repeatedly asks questions relating to programmes other than the Gambio software (see clause 8.5), if they fail to comply with their duty to participate in troubleshooting, in a serious and culpable manner, in particular if they want to claim support without providing the access data to their webshops to the Gambio GmbH or if the first request is not submitted by e-mail (cf. clause 8.3), if they submit requests which do not refer to the latest update of the software (clause 9) or if their requests show that they want to use the support for more than one webshop (clause 8.2).
14. Customer portal; forum
14.1 Upon registration, the Gambio GmbH automatically sets up a customer account for the customers, with which they can also log in the customer portal.
14.2 The necessary access and user data (hereinafter referred to including the password as "access data") are communicated to the customers. The Gambio GmbH is entitled to subsequently change the access data of the customers. In this case, the new access data will be immediately communicated to the customers.
14.3 The customers are responsible for the protection of the access data. The access data shall be kept confidential and may not be made available to third parties, unless there is a written consent of the Gambio GmbH. The customer knows that third parties that might gain knowledge of the access data have the opportunity to act in the name of the customer, such as to submit support requests. If customers discover or suspect that their access data are used by third parties, the customer must change the access data immediately or, if this is not immediately possible, to report the incident to the Gambio GmbH without delay. The customer is liable for all consequences arising from the use of his access data by unauthorized third parties, provided that he is responsible for such use.
14.4 in case of justified suspicion of misuse of the access data of the customer, in particular if this was indicated by the customer, the Gambio GmbH is entitled to immediately block this access. The Gambio GmbH will inform the customer immediately about blocking.
14.5 Customers of the Gambio GmbH, who have agreed during the registration to the separate forum conditions, additionally are granted access to the customer forum of the Gambio GmbH. Customers, to whom the customer forum was not available at the time of conclusion of the contract or those who want to apply for the customer portal at a later point in time can unlock their access by using the corresponding function for the customer forum on the website. In the customer forum, the customers can exchange their experiences with the shop and the shop software. Further details can be found in the corresponding terms and conditions for the forum.
15. Further support and maintenance services
Upon customer request, the Gambio GmbH may perform further services on the basis of the general terms and conditions which are in connection with the software, but do not fall under the scope of the support (cf. clause 8.5) against payment of a separate fee on which it has to be agreed. This applies in particular to
- works and services performed on-site at the customer, based on usage requirements of the customer or which are necessary in connection with the installation of another programme or programme part of the customer, as well as those works and services that are required for the correction of malfunctions, which are subject to an error as stated under clause 11.
- programming of additional features of the Gambio software according to customer's requirements as well as works and services, and
- entering data in the webshop of customer, even after an update has necessitated this entry.
16.1 The Gambio GmbH shall be legally liable for defects in the granted software and for shortcomings only, if it has fraudulently concealed the defect.
16.2 The liability for the support is subject to statutory provisions.
17. Data protection
18. Final provisions
18.1 To this contract solely the law of the Federal Republic of Germany shall apply. The applicability of the CISG is excluded. If the customer is a consumer (see clause 3), those mandatory consumer protection provisions shall be additionally applicable that apply in the state, where the customer has his habitual residence, provided that they offer further protection.
18.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all claims arising from or in connection with the contractual relationship shall be Bremen.
In the event of any inconsistency between the German and the English version the German version shall prevail.
Version of 13 June 2016
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