General Terms and Conditions of Business of cleverbridge AG
cleverbridge AG, Brabanter Strasse 2-4, 50674 Cologne (Germany), further referred to in brief as "cleverbridge" is an e-commerce business that trades internationally.
The following terms shall have the following meanings in the context of these General Terms and Conditions of Business ("Ts& Cs"):
1.1 "Supplier" means any natural person or legal entity that provides, generates, manufactures or delivers Products and Services within the meaning of Clause 1.2 to cleverbridge for the purpose of resale to a Customer. 1.2 "cleverbridge Website" means any web page operated by cleverbridge for the sale of the Products and Services that is identifiable from the Ts& Cs as well as cleverbridge's legal information posted on it. Web pages operated by Suppliers are expressly not covered by this definition. 1.3 "Products and Services" means (a) Software, (b) a decryption or authorisation code, a series or authorisation number, a download link or similar code or mechanism, that gives the Customer (as defined in Clause 2) access, first-time use or continued use of the Software or a Service, (c) other (also physical) Products, or (d) Services sold by cleverbridge to the Customer. 1.4 "Security Code" means a numerical security feature embossed or printed on the front or back of most Visa, MasterCard, Discover, American Express and other credit cards. 1.5 "Software" means all the Supplier's computer programmes marketed in any form and through any medium via cleverbridge's e-commerce site.
These Ts& Cs regulate the legal relationship between cleverbridge and the Customer for the sale of Products and Services via cleverbridge's retail channels. The following provisions are addressed both to consumers and to businesses. Where reference is made to "Customers" this shall unless otherwise specified mean both consumers and also businesses. A consumer is a natural person who enters into a legal transaction for a purpose that cannot be attributed to that person's trade, business or profession (Section 13 of the Federal Civil Code). A business is a natural person or legal entity or partnership with legal capacity that enters into a legal transaction in the course of his/her/its trade, business or profession (Section 14 of the Federal Civil Code).
3.1 These Ts& Cs apply to all offers, acceptances, deployments, deliveries of services and supplies by cleverbridge or to the Customer in connection with the sale of Products and Services via a cleverbridge Website and exclude the conditions of the Customer or third parties that depart from the same; departing conditions shall require written acceptance by cleverbridge. These Ts& Cs shall apply even where cleverbridge performs its contractual obligations without reservation despite being aware that the Customer's conditions are inconsistent with the Ts& Cs. Where the sale of Products and Services includes the delivery of Software or the provision of Services or other performance by third parties, the particular licence and other conditions of the third party shall apply above and beyond these Ts& Cs. 3.2
For Customers placing their order from the USA, the provisions of Clause 16 and Clause 18.1 of these Ts& Cs shall not apply.
For Customers placing their order from a country other than the USA which is not a member of the European Union, the provisions of Clause 16 and Clause 18.2 of these Ts& Cs shall not apply.
For Customers placing their order from a member state of the European Union, the provisions of Clause 18.2 of these Ts& Cs shall not apply.
Entry into a Contract (Offer, Confirmation and Acceptance)
4.1 An order placed by the Customer represents an offer addressed to cleverbridge for the purchase of Products and Services under these Ts& Cs. All orders placed by Customers require subsequent acceptance by cleverbridge. The customer order is accepted through the download authorisation, the sending of the ordered goods or the provision of a Service. In principle this only happens, and the Contract only comes into existence, when the payment by the Customer for the Products and Services at the price applicable upon purchase has been credited to a cleverbridge account or there has been successful authorisation of the credit card or other form of payment by the Customer accepted by cleverbridge. In the case of purchase on account or purchase with grant of a direct debit authorisation (where offered) the download authorisation, the provision of the Service or the sending of the ordered goods occurs without receipt of payment in advance. 4.2 cleverbridge may, at its own discretion, use third parties to carry out its services.
5.1 The Customer warrants that all the information he/she/it provided when placing his/her/its order was up-to-date and accurate in all material respects and that it is adequate for cleverbridge to carry out the order. Additional costs, incurred by cleverbridge as a result of false or incomplete information shall be for the account of the Customer. 5.2 To the extent that the Customer has access to a customer account with cleverbridge he/she/it is him/her/itself responsible for looking after and immediately updating his/her/its account details in terms of its accuracy and completeness; the Customer shall not on any account disclose the password used to access the customer account. 5.3 The Customer shall be obliged to pay for all orders activated using his/her/its user name and password. This payment obligation only lapses if the Customer is able to prove that he/she/it did not negligently or deliberately facilitate an order using his/her/its user name and password. The Customer shall otherwise be obliged to pay for an order made using his/her/its user name and password unless the Customer has, prior to the relevant order, requested that cleverbridge block his/her/its user access and password and between the arrival of the Customer's blocking request and the arrival of the order cleverbridge has failed to block the user access and/or password despite the lapse of a reasonable length of time.
Approvals, Exports, Customs Duties
6.1 To the extent that an approval or licence from the government or other authority is required for the acquisition, transportation or use of Products and Services, the Customer shall be obliged to obtain such approval or licence at his/her/its own cost and provide cleverbridge with evidence of the same upon request. The fact that the Customer has yet to obtain an approval or licence shall not entitle the Customer to withhold or delay payment. All costs and expenses incurred to cleverbridge on the basis of such a failure to obtain an approval or licence or its being obtained erroneously shall be for the account of the Customer. For consumers this shall not apply in relation to an approval or other permit for transportation. 6.2 The Products and Services sold by cleverbridge and made available to the Customer electronically or physically may give the Customer access to technologies and Software which are subject to the export controls of the Federal Republic of Germany, the export controls of the United States of America or those of the countries in which the Products and Services are being marketed or in which they are being used. The Customer undertakes to observe these export controls. cleverbridge shall be entitled to withdraw from the Contract where the Customer breaches export controls. 6.3 Importing goods into the European Economic Area may, where specific goods values are exceeded, lead to customs duties (e.g. where the value of the goods exceeds the Customer's personal allowance). Upon the arrival of the goods at the place designated by the Customer the latter may incur customs duties, import duties or taxes imposed by the relevant authorities. All such additional costs shall be borne by the Customer as they are beyond cleverbridge's control and the latter has no knowledge of them. More detailed information on customs regulations or duties can be obtained by the Customer from the customs office responsible for his/her/its jurisdiction.
Prices, Payment Conditions and Delay
7.1 Unless otherwise indicated, all prices specified by cleverbridge on the cleverbridge Website are deemed to be in the currency quoted there. With respect to delivery and supply the prices indicated at the time of the order shall apply. Unless otherwise indicated, the prices indicated are understood as inclusive of VAT but do not include the costs of delivery or transportation to the designated delivery point (delivery charges are listed separately on the cleverbridge Website and on cleverbridge's invoices). The Customer states his/her/its agreement to the order of the delivery or transportation costs for the Products and Services listed by cleverbridge at the time of purchase. 7.2 The payment of the purchase price falls due immediately upon entry into the contract and shall take place in the manner specified on the cleverbridge Website. With the exception of purchases on account payments shall take place prior to delivery. Where the Customer has purchased Products or Services with recurring payment obligations (subscriptions) the prices are due at the agreed interval(s) and the Customer shall pay these or make the corresponding purchase price available using the payment option he/she/it has selected for debiting by cleverbridge. 7.3 In case of any advance deliveries (purchase on account or purchase with grant of a direct debit authorisation) payments shall be made in full irrespective of any claims for short deliveries or product defects. 7.4 Bills of exchange and cheques are only accepted as payment by cleverbridge to the extent these are expressly offered by cleverbridge on the cleverbridge Website and are accepted for processing; they shall count as payment only once they have been redeemed. Discount and collection charges shall be for the Customer's account. cleverbridge shall not be liable for their prompt submission. 7.5 To the extent that in case of purchase on account the invoice includes a payment deadline the Customer shall be in arrears be in if the full purchase price payment is not credited to a cleverbridge account or received by cleverbridge within such deadline. In the case of payment obligations on the part of the Customer that the latter has to comply with in respect of cleverbridge by granting a debit authorisation or direct debit authorisation (in particular also in cases of recurring payment obligations) the Customer shall be in default if the payment method selected by him/her/it is, at the time debited by cleverbridge, insufficient to cover the full amount. 7.6 Where the Customer defaults he/she/it shall pay cleverbridge late payment interest of five percentage points (5%) over the base rate applicable at the time of the default. Where the Customer is not a consumer the interest rate shall be eight percentage points (8%) over the base rate. "Base rate" means a variable interest rate set at half-yearly intervals by the German Central Bank ("Bundesbank") which, increased by a fixed margin, gives the late-payment interest rate (http://www.bundesbank.de/Redaktion/EN/Standardartikel/Bundesbank/Interest_rates/base_rate_of_interest.html?nsc=true). The base rate is adjusted on 1 January and 1 July every year by the percentage points by which the interest rate for the most recent main refinancing operations of the European Central Bank has risen or fallen prior to the first calendar day of the relevant half-year. 7.7 In case of default cleverbridge reserves the right to cancel the order and/or claim damages.
Payment by direct debit
8.1 cleverbridge offers the payment method of direct debit (grant of a direct debit authorisation) only for orders from Germany. As from 1 February 2014, payments shall be carried out by direct debit method exclusively within the framework of the SEPA Core Direct Debit Scheme of the Single Euro Payments Area ("SEPA"). 8.2 By sending his/her/its order, the Customer declares his/her/its agreement that the amount which is debited from his/her/its bank account within the framework of the SEPA Core Direct Debit Scheme (total order amount) is notified with a pre-notification ("Pre-Notification") already directly after sending his/her/its order.
Payment by Credit Card
9.1 Where payment is made by credit card the Customer shall provide full credit card data (cardholder name, card number, expiry date, security code) when placing the order and thereby declares his/her/its agreement to cleverbridge's taking payment for the order via the relevant credit card company, in particular in case of internet orders. 9.2 cleverbridge shall take all reasonable steps to protect the credit card data against unauthorised access by third parties. The Customer is aware that in particular where such data is transferred electronically the possibility of such data becoming known to unauthorised third parties cannot be excluded.
Delivery, Delivery Period
10.1 The delivery of the ordered goods shall be carried out according to the delivery information on the relevant cleverbridge Website, as amended from time to time. 10.2 The agreed delivery period shall begin upon receipt of payment in full by cleverbridge or following express written acceptance of the order by cleverbridge. Where relevant it is extended by such time as the Customer requires in order to supply the data necessary for the processing of the order to cleverbridge or the cleverbridge payment services provider selected by the Customer. 10.3 Delivery delays caused by statutory or official arrangements (e.g. import and export restrictions) and that are not the fault of cleverbridge shall extend the delivery period for a time equivalent to the duration of such obstacles. In important cases cleverbridge shall immediately notify the Customer of their commencement and termination, to the extent cleverbridge is aware of the same. 10.4 Digital Products and Services 10.4.1 Upon purchase of digital Products and Services the Customer receives, following the order, access to a code for the activation of the Software, access to a Webpage with a download link for the downloading of the Software, or the use of the digital Product or Service is facilitated or provided in some other way. Upon purchase of digital Products and Services with recurring payment obligations (subscriptions) the download shall only be authorised, the Service supplied or the ordered goods dispatched in each case after full receipt of payment for the period for which the recurring payment obligation exists. 10.4.2 To the extent the Customer is offered digital Products and Services or parts thereof by cleverbridge or third-party servers via the electronic transfer of a code, access to a Website with a download link, or similar manner, an obligation is only to be performed at the debtor's (cleverbridge's) place of business ("Holschuld"). Following access to the required data the Customer alone shall decide if and when he/she/it will download or activate the digital Products and Services from the servers of cleverbridge or a third party, or when he/she/it will make use of the digital Products and Services. 10.5 Physical Products and Services 10.5.1 To the extent that the purchase of Products and Services includes the delivery of physical Products, delivery shall be made to a valid address specified by the Customer. The Customer shall be obliged to check the delivery address on all the confirmations and acceptances issued by cleverbridge and immediately to notify cleverbridge of any errors or omissions. The costs arising as a result of an amendment to the delivery address undertaken by the Customer following the submission of his/her/its order shall be borne by the Customer. 10.5.2 To the extent the Customer fails to accept the delivered Products, or to the extent he/she/it rejects them, risk of damage or loss of the Product shall pass to the Customer without prejudice to all other rights to which cleverbridge is entitled:
cleverbridge shall be entitled, at the Customer's risk and cost, to endeavour to have the Product delivered by such means it deems suitable and reasonable and to put the Product into storage at the Customer's risk and cost.
The Customer shall be obliged upon request to settle all reasonable storage costs as well as all other reasonable costs in respect of the unsuccessful offer and retention of the goods owed such as arise from the omission to accept or the rejection of the goods.
10.5.3 cleverbridge shall be entitled to make part deliveries insofar as this is reasonable. To the extent cleverbridge makes part deliveries each part delivery shall represent a separate contract; this shall not apply to consumers. Customers that are businesses shall, in case of defects in one or more part deliveries, not be entitled to cancel subsequent part deliveries. 10.5.4 Where the Customer is a consumer the risk of accidental destruction and accidental deterioration of the ordered Product shall pass to the Customer upon delivery of the same. Where the Customer is a Business, the risk of accidental destruction and accidental deterioration passes to the former as soon as the Product passes to the person carrying out transportation but no later than upon entering the Customer's possession.
Duty of Inspection and Notification
Where the Customer is a Business he/she/it shall be obliged to test the Products in normal operating conditions immediately after delivery and to make sure that they are in perfect condition, match the product description and are complete. Claims may only be made in respect of rights based on Product defects or a short delivery if the Customer notifies cleverbridge in writing or by email of the Product defects or short delivery immediately and in any case no later than five days after receipt of the Products or in the case of a hidden defect immediately after becoming aware of the same. Section 377 of the German Commercial Code shall also apply.
Retention of Title
cleverbridge retains title to the Product until payment in full of all claims under the sales agreement including secondary claims (e.g. costs of exchange, financing costs, interest etc.). Where the Customer acts in breach of contract cleverbridge shall be entitled to demand the return of the Product. Neither the retraction nor any seizure of the item to which title is retained shall amount to rescission of the Contract.
Usage Rights, Licence
Customer data is subject to electronic data processing. Where necessary cleverbridge forwards personal data to the Supplier of the Products and Services purchased by the Customer, service partners or affiliated companies, some of which may be located outside the European Economic Area, including the USA, subject to compliance with the appropriate security measures and observance of the statutory provisions. cleverbridge's full data protection regulations can be viewed under "Data Protection".
Defects, Claims in respect of Defects and Exclusion of Liability
15.1 All information on cleverbridge's Products and Services is merely by way of description and does not represent a guarantee. 15.2 Defective Products and Services
A Product is defective where it lacks the agreed quality, is not suitable for the agreed use or appropriate for the customary use and does not demonstrate the quality usual for Products of the same type and which the purchaser can expect of this type of Product. A Product is also defective where it infringes industrial property rights, copyright or other third-party rights. The technical and legal regulations applicable in Germany shall apply unless specifically agreed otherwise.
Services or the provision of services are defective to the extent they do not comply with the contractual agreements.
15.3 Period for Supplementary Performance
Where a defective Product has been delivered the Customer shall impose a reasonable deadline on cleverbridge for supplementary performance. There is no need to set such a deadline where this is unnecessary under Section 323 Subsection 2 of the Federal Civil Code, in particular to the extent cleverbridge seriously refuses supplementary performance once and for all where, with regard to performance, time is of the essence or other circumstances exist which, given the interests of both sides, justify an immediate rescission or immediate claim for damages.
Where Services have not been performed in accordance with the contract the Customer shall set a reasonable deadline for cleverbridge to perform the Service anew unless this is unnecessary under Section 323 Subsection 2 of the Federal Civil Code.
15.4 Claims for Defects 15.4.1 Claims for Defects by Businesses
Where it has carried out or delivered defective Products and Services to a business cleverbridge may choose whether to make good the defects by way of supplementary performance or whether it will replace the defective Products and Services with a new Product or Service free of defects.
Where the supplementary performance fails the business shall be entitled to bring a claim in respect of its statutory warranty rights as follows:
The right to lower the relevant purchase price (price reduction) is excluded.
The right of cancellation shall be limited to the relevant order.
Where the business is entitled to claim damages instead of performance or to rescind the contract or still to claim supplementary performance cleverbridge may require him/her/it to exercise his/her/its rights within a reasonable period. The business shall notify cleverbridge of his/her/its decision in this regard. Where the business fails to exercise his/her/its rights within the deadline a claim may only be brought for damages in lieu of performance or notice given of rescission where a new, reasonable deadline for supplementary performance, to be specified by the business, has expired unsuccessfully.
The limitation period for defects claims by businesses shall be twelve (12) months from delivery of the Product.
15.4.2 Claims for Defects by Consumers
Where it has carried out or delivered defective Products and Services to a consumer the latter shall be entitled without restriction to statutory warranty rights with the exception of the damages limitation in Clause 15.6 of these Ts& Cs. In particular, the consumer may choose whether cleverbridge should make good the defects by way of supplementary performance or replace the defective Products and Services with a new Product or Service free of defects. cleverbridge is, however, entitled to refuse the selected form of supplementary performance where this is possible only at excessive cost and the other form of supplementary performance is available without material disadvantage to the consumer.
Where the supplementary performance fails it shall generally be at the Customer's discretion to opt for a lowering of the purchase price (reduction) or to rescind the contract.
The limitation period for defects claims by consumers shall be twenty-four (24) months from delivery of the Product.
15.5 Legal Consequences of Rescission
Where the Customer exercises an existing right of rescission, the contractual parties shall return the services received and surrender any use or enjoyment derived. At the same time, the Customer's right to use the Products or Services shall cease. In the case of Software previously purchased the Customer shall immediately remove this from all installations, storage media and other files and shall destroy the physical components of the Products and Services as well as any copies made of the Software. In addition, the Customer shall make a separate written statement that it will undertake the actions set out above.
15.6 Disclaimer 15.6.1 ANY LIABILITY ON THE PART OF CLEVERBRIDGE FOR CONSEQUENCES THAT HAVE ARISEN FROM ALTERATIONS MADE TO THE PRODUCTS AND SERVICES BY THE CUSTOMER OR BY A THIRD PARTY OR THAT HAVE ARISEN THROUGH THE MISHANDLING OR INCORRECT OPERATION OF THE PRODUCTS AND SERVICES SHALL BE EXCLUDED. 15.6.2 ANY LIABILITY ON THE PART OF CLEVERBRIDGE FOR THE ADEQUACY OF THE OPERATION OF THE PRODUCTS AND SERVICES FOR THE SPECIFIC REQUIREMENTS OF THE CUSTOMER OR FOR THE COMPATIBILITY OF THE PRODUCTS AND SERVICES WITH COMPONENTS WITHIN THE SPECIFIC HARDWARE CONFIGURATION AT THE CUSTOMER'S PREMISES SHALL BE EXCLUDED. 15.6.3 UNLESS OTHERWISE SPECIFIED IN THIS PARAGRAPH 15.6, LIABILITY ON THE PART OF CLEVERBRIDGE FOR ACTS OR OMISSIONS ATTRIBUTABLE TO SIMPLE NEGLIGENCE ON THE PART OF CLEVERBRIDGE SHALL BE STRICTLY EXCLUDED. 15.6.4 WHERE CLEVERBRIDGE NEGLIGENTLY BREACHES A MAIN OBLIGATION THAT IS MATERIAL TO THE CONTRACT (MATERIAL CONTRACTUAL OBLIGATION), CLEVERBRIDGE'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO FORSEEABLE DAMAGE TYPICALLY ARISING IN SUCH CIRCUMSTANCES. MATERIAL CONTRACTUAL OBLIGATIONS ARE THOSE THAT NEED TO BE COMPLIED WITH IF THE PURPOSE OF THE CONTRACT IS TO BE ACHIEVED. 15.6.5 WHERE THE CUSTOMER BRINGS DAMAGES CLAIMS BASED ON CLEVERBRIDGE'S DELIBERATE OR RECKLESS BREACH OR ON THE ABSENCE OF A FEATURE GUARANTEED BY CLEVERBRIDGE, CLEVERBRIDGE SHALL BEAR LIABILITY WITHIN THE STATUTORY LIMITS. 15.6.6 THIS SHALL BE WITHOUT PREJUDICE TO CLEVERBRIDGE'S LIABILITY FOR CULPABLE LOSS OF LIFE, PERSONAL INJURY OR DAMAGE TO HEALTH. THE SAME SHALL APPLY TO LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT. 15.6.7 WHERE CLEVERBRIDGE'S LIABILITY IS EXCLUDED OR LIMITED, THIS SHALL ALSO APPLY TO THE PERSONAL LIABILITY OF CLEVERBRIDGE'S WORKERS, EMPLOYEES, CO-WORKERS, LEGAL REPRESENTATIVES AND VICARIOUS AGENTS.
Revocation Right for Consumers
The regulations in this section 16 shall only apply to Customers who place an order from a member state of the European Union:
Customers who are consumers can terminate their contract in writing (e.g. letter, facsimile or e mail) within fourteen (14) days and without stating any reason or – if the Customer received the goods within the above two weeks – by returning the goods. The revocation period commences after receiving this explanatory advice in writing, however, not before the goods are received by the recipient when goods are delivered, (not before receipt of the first partial delivery for recurring deliveries of similar goods), not before the conclusion of the agreement when rendering services and not before fulfillment of cleverbridge's duties to provide information pursuant to Art. 246, Section 2 in connection with Section 1, Subsections 1 and 2 Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB), both when rendering services and delivering goods, as well as cleverbridge's duties pursuant to Section 312 g, Subsection 1, Sentence 1, German Civil Code (Bürgerliches Gesetzbuch – BGB), in connection with Art. 246, Section 3 EGBGB. The time limit for revocation is deemed to have been met when the notice of revocation is, or goods are, dispatched in due time. The revocation should be directed to cleverbridge AG, Brabanter Strasse 2-4, 50674 Cologne, Germany, or sent via e mail to firstname.lastname@example.org.
16.2 Legal Consequences of Revocation 16.2.1 In the event of effective revocation both parties have to return the received goods or services as well as surrender any derived benefits (e.g. benefits of use or interest). If the consumer cannot (partially) return and/or surrender the services received and benefits or only return and/or surrender them in a deteriorated state to cleverbridge, the consumer must pay compensation to cleverbridge accordingly. If the subject of the agreement is rendering services, this can lead to the fact that the consumer still has to fulfill the contractual payment obligations for the period up to revocation. The consumer must only pay compensation for the deterioration of the goods if the deterioration can be traced back to the manner in which the goods were treated beyond examination of features and functionality. "Examination of features and functionality" means testing and trying out the goods as it is possible and customary in a shop. Furthermore the consumer can avoid the duty to pay compensation for the value of the goods and/or for any derived benefits for any deterioration which occurred through the intended use of the goods by not using the goods as if they were his/her property and refraining from anything which adversely affects the value. 16.2.2 Goods which can be sent as packages are to be returned at cleverbridge's risk. The consumer must bear the usual costs of returning the goods if the delivered goods correspond to the order and if the price of the goods to be returned does not exceed an amount of forty (40) Euros or for goods with a higher price if the consumer has not yet effected payment at the time of revocation or made a contractually agreed partial payment. Returning the goods is otherwise free of charge for the consumer. Goods which cannot be sent as packages shall be collected from the consumer. Obligations to reimburse payments must be met within thirty (30) days. The time limit commences for the consumer when he/she dispatches his/her declaration of revocation or the goods, and the time limit commences for cleverbridge when the declaration of revocation is received. 16.2.3 The consumer's right of revocation expires prematurely for services when the agreement has been fulfilled by both sides at the consumer's explicit request before the consumer has exercised his/her right of revocation. 16.2.4 Pursuant to Section 312d, Subsection 4, BGB, the right of revocation does generally not exist for distance contracts to supply the following:
Goods which were manufactured pursuant to Customer specifications or which were manufactured to tailor clearly to personal needs or which are not suitable for returning due to their design (this includes purchasing software and software licenses through downloading); or
Audio or video recordings or software if the seal of the supplied recording medium has been broken by the Customer.
End of explanatory advice on revocation
Place of Performance
In the case of contracts with traders, legal entities or public-law special funds the place of delivery and payment shall be agreed as the place where cleverbridge has its offices i.e. Cologne.
Jurisdiction and Applicable Law
18.1 Jurisdiction and applicable law for Customers placing their order outside the USA
In the case of contracts with consumers the general jurisdiction shall be determined on the basis of the statutory regulations. According to the latter the courts of the place where the Defendant has his/her offices or residence shall have jurisdiction. However, where the consumer has no general legal domicile in the Federal Republic of Germany or should he/she lose his/her domicile or habitual residence within the jurisdiction of the Federal Republic of Germany after the contract has been entered into then the place of jurisdiction shall be the registered offices of cleverbridge i.e. Cologne, Germany. This shall also apply where the consumer's domicile or habitual residence are not known at the time the claim is initiated.
In the case of contracts with traders, legal entities or public-law special funds it is agreed that the courts of the place where cleverbridge has its offices shall have jurisdiction i.e. those of Cologne, Germany.
The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply.
18.2 Jurisdiction and applicable law for Customers placing their order from within the USA (Dispute Resolution by Binding Arbitration) 18.2.1 cleverbridge and the Customer agree to arbitrate all disputes and claims between the two parties (the "Parties"). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between the Parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement between the Parties (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and
- Claims that may arise after the termination of any agreement between the Parties.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. Customer agrees that, by accepting these terms and conditions, Customer and cleverbridge are each waiving the right to a trial by jury or to participate in a class action. The transaction between the Parties evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of the agreement entered into by the Parties.
18.2.2 A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to cleverbridge should be addressed to: cleverbridge AG, Brabanter Str. 2-4, 50674 Cologne, Germany, ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If cleverbridge and Customer do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, Customer or cleverbridge may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by cleverbridge or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or cleverbridge is entitled. Customer may download or copy a form Notice. 18.2.3 After cleverbridge receives notice at the Notice Address that Customer has commenced arbitration, it will promptly reimburse Customer for Customer's payment of the filing fee. If Customer is unable to pay this fee, cleverbridge will pay it directly upon receiving a written request at the Notice Address. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these terms and conditions, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. All issues are for the arbitrator to decide, including the scope of this arbitration provision, but the arbitrator is bound by the terms of these terms and conditions. Unless cleverbridge and Customer agree otherwise, any arbitration hearings will take place in the county (or parish) of Customer's billing address. If Customer's claim is for Ten Thousand U.S Dollars (US$10,000) or less, cleverbridge agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Customer's claim exceeds Ten Thousand U.S Dollars (US$10,000), the right to a hearing will be determined by the AAA Rules. Except as otherwise provided for herein, cleverbridge will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that the substance of Customer's claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, Customer agrees to reimburse cleverbridge for all monies previously disbursed by it that are otherwise Customer's obligation to pay under the AAA Rules. 18.2.4 If, after finding in Customer's favor in any respect on the merits of Customer's claim, the arbitrator issues Customer an award that is:
- Equal to or less than the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of your billing address, and
- Greater than the value of cleverbridge's last written settlement offer made before an arbitrator was selected, then cleverbridge will:
- Pay Customer the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of Customer's billing address ("the premium") instead of the arbitrator's award; and
- Pay Customer's attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses that Customer's attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration ("the attorney premium").
If cleverbridge did not make a written offer to settle the dispute before an arbitrator was selected, Customer and Customer's attorney will be entitled to receive the premium and the attorney premium, respectively, if the arbitrator awards Customer any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the premium and the attorney premium at any time during the proceedings and upon request form either party made within fourteen (14) days of the arbitrator's ruling on the merits.
18.2.5 The right to attorneys' fees and expenses set forth in paragraph (4) supplements any right to attorneys' fees and expenses Customer may have under applicable law. Thus, if Customer would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding Customer that amount. However, Customer may not recover duplicative awards of attorneys' fees or costs. Although under some laws cleverbridge may have a right to an award of attorneys' fees and expenses if it prevails in arbitration, cleverbridge agrees that it will not seek such an award. 18.2.6 The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. CUSTOMER AND CLEVERBRIDGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER'S OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and cleverbridge agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. 18.2.7 This Agreement will be construed in accordance with and governed in all respects by the laws of the State of Illinois, USA, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
These Ts& Cs cover the entire agreement between the Parties in relation to the stated dealings and replace any previous or simultaneous agreements, communications and arrangements between the Parties (whether oral or in writing) in relation to the present subject matter. Amendments and additions to these Ts& Cs shall be in writing. The written-form requirement may only be waived in writing.
Should a provision of these terms and conditions of business or a provision within the context of any other agreements be or become invalid then this shall not affect the validity of the other agreements or provisions. The statutory regulation shall apply in place of the invalid provisions.
Version: February 2014
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