GENERAL TERMS AND CONDITIONS
The following are the general terms and conditions.
Please read these thoroughly before purchasing a digades®product.
GENERAL TERMS AND CONDITIONS
§ 1 General
These General Terms and Conditions apply to all business relationships concerning the dfreeeze®and dguard® app and the dfreeeze® and dguard® accessories between Digades GmbH Digitales und analoges Schaltungsdesign, Äußere Weberstraße 20, 02763 Zittau, represented by their CEO: Mr Lutz Berger, Certified Engineer, (hereafter: Digades) and its clients in the version valid at the point of concluding the contract. Any conflictingTerms and Conditions of the client are expressly rejected here.
b) Contractual agreement
The contract language is German.
c) Subsequent amendments to the terms and conditions
Digades has the right to subsequently amend and supplement the General Terms and Conditions with regard to existing contractual relationships insofar as changes in the legislation or jurisprudence shall require this or other circumstances lead to the situation in which the contractual equivalent relationship is more than insignificantly disrupted. A subsequent change in the terms and conditions becomes effective if the user does not object within six weeks of notification of the change. Digades will explicitly notify users at the commencement of this period that their silence will be deemed as acceptance of the change to the contract and allow them the opportunity during this time period to submit an explicit declaration. If the user objects during this time period, either Digades or the user may exceptionally terminate the contractual relationship.
§ 2 Conclusion of contract
a) Conclusion of contract at www.shop.digades.de
The presentation of the offer at the Digades online shop is non-binding and without obligation. For an order at www.shop.digades.de the ordering process consists of a total of three steps. In the first step, the customer selects the desired accessories and/or the licence. In the second step, they enter their data. In the third step, the customer has the opportunity to check all of the information entered (e.g. name, address, payment method) once more and to correct any errors before they confirm their order by clicking the button “Liable to pay”. With their order the customer declares a binding offer of a contract. Digades confirms receipt of the customer's order immediately. The receipt confirmation does not yet represent a binding acceptance of the order. Digades has the right to accept as binding the offer of a contract within the order by email, fax, phone, post or the provision of the licence within two days of the order being placed. With this acceptance, a contract between Digades and the customer comes into force. The contract text is saved by Digades and sent to the customer in the form of a confirmation email. The contract text cannot be viewed by the customer after completion of the order.
b) Conclusion of the contract via Amazon
Insofar as Digades sells via Amazon, the conclusion of the contract between Digades and the customer comes about according to the form and subject to the conditions of the general T&Cs at Amazon (http://www.amazon.de/gp/help/customer/display.html/ref=footer_cou/278-71...) The customer's order represents an offer to Digades to conclude a sales contract. At the commissioning of an order on Amazon.de, Digades sends the customer an email which acknowledges the receipt of the order and and sets out its particulars (order confirmation). This order confirmation does not represent an acceptance of the order, but informs you simply that the order has been received. The sales contract comes into force only if Digades sends the ordered product to the customer and the dispatch is confirmed by a second email (dispatch confirmation). For products in one and the same order that are not listed in the dispatch confirmation, a sales contract comes into effect. Before issuance of the sales contract and acceptance of the purchase, the customer has the opportunity to check the data entered and to confirm it. If the customer identifies any errors in their submission, the correction of the submission is possible instead of confirmation. Within the framework of sales on Amazon, the contract text is not saved by Digades. After the submission of their order, the customer can no longer retrieve the contract text via the seller's internet site. The customer can, however, print the relevant website with the contract text via the browser's print function. Furthermore, the customer can trace previous orders in their personal Amazon customer account.
c) Conclusion of contract on the app store
The respective app is obtainable via the Apple app store as well as the Google Play store. The usage contract is concluded at the relevant app store in this case. For this the creation of a user account via the entry of an email address and the selection of a password is necessary. The provision of the app represents the offer from Digades which the customer accepts by downloading the app. When the user downloads the dguard app, a user contract with Digades comes into effect. The contract text is saved by Digades and is sent to the customer in the form of a confirmation email. After the completion of the order, the contract text can no longer be viewed by the customer.
§ 3 Service and delivery
a) Scope of service
Digades is a supplier in the area of software, hardware and apps.
The Digades app enables the customer to control their parking heater (with W-Bus) via a smartphone, tablet, Mac or PC and to programme and switch the parking heater on and off and to carry out status requests. For parking heater models without W-Bus a reduced function scope is available, which is described in the installation instructions. The installation instructions can be downloaded from https://www.dfreeeze.de/de/news-downloads. Digades offers the customer the necessary mobile communications receiver for communication with the parking heater. Use of the Digades dfreeeze® requires the relevant compatible control device and the mobile communications receiver offered by Digades, a licence and sufficient internet access. It is the responsibility of the customer to keep or set their device in such a manner as to enable the use of the app. The dfreeeze® system can be controlled with iOS and Android systems or via a web app on the computer.
With the help of dguard®, the user can record their journeys on their motorbike. The recorded data includes position, speed, direction, acceleration and rotation. Thanks to the aforementioned data and with the help of multiple sensors, the dguard® app can tell if an accident has occurred and, if necessary, automatically connect to the rescue coordination centre after the accident. In addition, the dguard® app also contains an anti-theft alarm. If the user's motorbike is removed in their absence, the user receives a notification on their smartphone (”Alarm”). Use of the Digades dguard® app is dependent on suitably compatible devices, the mobile communications receiver from Digades and sufficient internet access. It is the responsibility of the user to keep or set their device in such a manner as to enable the use of the app. Via the dguard® app, the correct setup of the dguard® system can be checked.
d) Partial deliveries
Digades has the right to make partial deliveries, if these are reasonable for the customer. In the case of partial delivery, the customer bears no additional delivery costs.
e) Delivery and service delays
Digades is not liable for delivery and service delays as a result of force majeure and as a result of exceptional and unforeseeable events which cannot be prevented by the greatest care on the part of Digades (this includes in particular strikes, official or legal decrees and cases of incorrect or improper self-delivery despite cover to that effect). Such delays shall give Digades the right to postpone the delivery for the duration of the event causing the delay.
In the case of unavailability due to the above-mentioned reasons, Digades may withdraw from the contract. Digades hereby undertakes to inform the customer of the unavailability immediately and to immediately refund any return services already rendered.
e) Exclusion of delivery
Delivery is not made to post office boxes.
f) Delay in acceptance
If the customer is late in accepting the ordered goods, after a reasonable grace period, Digades is entitled to cancel the contract and claim damages for delay or for non-performance. During the delay in acceptance, the customer bears the risk of incidental loss or incidental deterioration. This does not apply if the person ordering exercises their right of cancellation through non-acceptance of the goods.
§ 4 Payment
a) Prices and dispatch costs
All prices are to be understood as inclusive of VAT as well as the costs of packaging and dispatch, unless collection by the customer from the Digades business address in Zittau has been agreed.
b) Payment processing
The processing of payments for the mobile communications receiver and the usage licence is carried out via Ingenico Payment Services.
c) Default of payment
The customer's payment is deemed to be in arrears if it is not received by Digades within two weeks following receipt of the invoice. In the case of payment arrears, interest is calculated at 5 percentage points above the basic interest rate of the European Central Bank, and/or 8 percentage points above the basic rate of the European Central Bank for transactions in which a user is not involved. If the customer is in arrears, Digades reserves the right to charge reminder fees of 2.50 euros. The assertion of any other compensation for damages remains reserved. The customer has the right to prove that there has been no or minimal damage for Digades.
d) Right of retention
The customer may exercise a right of retention only for such counterclaims that are outstanding and that are based on the same legal relationship as the obligation of the customer.
§ 5 Revocation instruction for users via distance-selling contracts (delivery of goods)
Revocation instruction for users for the standard delivery of goods
You have the right to revoke this contract within fourteen days without giving a reason. The term of revocation is fourteen days after the day on which you or a third party named by you who is not the carrier takes and/or took possession of the goods.
In order to activate your right of revocation you must inform us (Digades GmbH Digitales und analoges Schaltungsdesign, Äußere Weberstraße 20, 02763 Zittau, Email: email@example.com, Phone: (0 35 83) 57 75-0, Fax: (0 35 83) 57 75-444) by means of an explicit clarification (e.g. by a letter sent by post, fax or email) about your decision to terminate this contract. You can use the attached termination form for this, but this is not obligatory.
In order to ensure the termination deadline is observed, it is sufficient for you to send notification of the exercising of the right of revocation before the end of the revocation period.
Consequences of termination
If you terminate this contract, we have a maximum of fourteen days from the day on which the notification of termination of this contract is received by us within which to return to you all payments received by us, including delivery costs (with the exception of additional costs incurred by choosing a delivery method other than the cheaper standard delivery offered by us). For this refund we use the same payment method as was used for the original transaction unless something different is explicitly agreed with you; in no instance will any charges be levied against you for this refund. We can refuse this refund until we have received the goods back or until you have provided proof that you have sent the goods back, depending on which is the earlier point in time.
You have to send back or surrender the goods immediately and in any case at the latest within fourteen days from the day on which you informed us of the termination of this contract. The period is observed if you send the goods before the end of the period of fourteen days. You bear the immediate costs of returning the goods.
You must only pay for any loss in value of the goods if this loss in value can be traced back to incorrect handling by you after an examination of the nature, characteristics and functions of the goods
- End of revocation instruction -
Exclusion of right of termination
The right of termination does not exist for contracts concerning the delivery of goods which are not prefabricated and for whose manufacture an individual selection or provision by the user applies, or which have been clearly customised according to the user's personal requirements. Also, the right of termination does not exist for the delivery of goods which can quickly spoil or whose expiration date will quickly be exceeded.
Special instructions for the early expiration of the right of termination
For contracts concerning the delivery of sealed goods, which for reasons of health protection or hygiene are not suitable for return, the right of termination expires prematurely if the seal on the goods has been broken after delivery. For contracts concerning the delivery of audio or video recordings or computer software in a sealed package, the right of termination expires prematurely if the seal on the the goods has been broken after delivery.
§ 6 Retention of ownership
The delivered goods remain the property of Digades until full payment of the sale price has been made. The customer must look after the goods under simple retention of ownership at all times. The customer assigns the claim and/or replacement that it receives concerning the damage, destruction or loss of the delivered goods to Digades. In the case of the customer's conduct contrary to the contract, particularly with regard to late payment, Digades has the right to reclaim the sold item. The reclaiming of the sold item constitutes a withdrawal from the contract.
§ 7 Warranty
For all goods delivered by Digades there are legal warranty rights.
a) Warranty claim
A warranty claim can only be enforced with regard to the quality of the goods. Reasonable variation in the aesthetic properties of the goods does not constitute a warranty claim. A warranty claim cannot be enforced based on the improper handling of the goods by the customer.
b) Transfer of risk
The risk of accidental loss or the deterioration of the goods sold is transferred to the customer with the transfer of the goods.
Should the customer notice that the secondary packaging arrives damaged or should damage be noted upon receipt of the goods, Digades requests that the customer should notify them of this. However, there is no obligation to make such a notification, nor will the warranty rights of the user be affected by a lack of notification.
If the goods are faulty, the customer can choose the method of rectification in the form of repair or replacement. If the faults are not corrected after two attempts at rectification, then the customer is entitled to withdraw from the contract or to a reduction in price.
e) Rights concerning negligible deficiencies
If a negligible deficiency is present, the customer has no right of withdrawal, however they do have the right to an appropriate reduction in the sale price.
f) Compensation for defects
For damage caused by inappropriate handling or use of the goods, no liability is accepted. Digades only issues compensation for defects in the goods in cases of malice aforethought or gross negligence. This exception does not affect the liability for damage such as injury to life, limb or health. The provisions of the product liability law also remain unaffected by the exclusion of liability.
g) Warranty concerning traders
The following provisions apply for traders, in derogation to the legal warranty regulations: In the case of a defect, Digades provides rectification either in the form of a rework or a replacement, as it sees fit. Here the risk of incidental loss or damage to the item is transferred with the transfer to the particular person who is to transport it. Warranty claims lapse after one year after such a transfer of risk.
h) Traders' obligation to report defects
Traders must report any apparent defects immediately and in writing, otherwise the enforcement of the warranty claim is excluded. Punctual reporting shall be sufficient for the observance of the deadline. The trader is responsible for the full burden of proof for all prerequisites for claims, particularly for the defect itself, for the point in time of the establishment of the defect and for the timeliness of the reporting of defects.
§ 8 Duration and availability
The duration of the licence is one year after the date of purchase. There is no automatic renewal of the licence. Digades accepts no liability for the availability of the services offered. Digades does not guarantee that the services offered or parts thereof are made available and can be used in every location.
§ 9 Liability
a) Liability exemption
Digades and their legal representatives and agents only accept liability with the reservations below for malice aforethought or gross negligence. For slight negligence, liability only applies to the violation of major obligations in the contract, i.e. to such obligations whose fulfilment is particularly important for the purpose of the contract. The liability is limited to foreseeable, direct, average damage typical for the contract. For customers who are not users, Digades accepts liability in the case of a grossly negligent violation of insignificant contractual obligations only to the extent of foreseeable, direct, average damage typical for the contract.
b) Liability restriction
This exception does not affect the liability for damage such as injury to life, body or health. The provisions of the product liability law also remain unaffected by the exclusion of liability.
§ 10 Final provisions
The exclusive place of jurisdiction for all legal disputes arising from this contract is stipulated as Zittau, the head office of Digades, insofar as the customer is a trader, a legal entity of public law or a special fund under public law, or insofar as the customer has no jurisdiction in the Federal Republic of Germany.
b) Choice of law
Unless mandatory statutory provisions concerning the right of domicile provide otherwise, German law with the exception of UN trade law shall apply.
c) Severability clause
The invalidity of individual provisions does not affect the validity of the other General Terms and Conditions.