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| 1. Scope, Contract Partners |
1.1 The version of the following general terms and conditions
applicable at the time of the order shall be applicable to software licensing contracts,
licensing agreements, contracts for the purchase of hardware (possibly in combination
with software), purchase contracts for other products as well as for the purchase
of services between PhoneGuard and the customer.
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| 2. Obligation to Provide Information in
Sales Agreements Closed over the Internet |
2.1 Contracting party for the customer is PhoneGuard USA Ltd
2.2 The important characteristics of the goods and services
are listed in the description of the respective item. When software is licensed,
delivery is limited to the object code (executable form) with the documentation
and installation and usage instructions provided by the manufacturer, if any. To
the extent that delivery is provided via download, no physical media or documentation
or manufacturer's instructions will be delivered in paper form, nor are they owed.
2.3 Reservations exist insofar as PhoneGuard USA Ltd can
withdraw from the contract if PhoneGuard USA Ltd is not in the position to deliver
the ordered goods for a reason that is no fault of its own because the supplier
did not fulfill its contractual obligations. In this case, the customer shall be
informed immediately.
2.4 The contract is closed in the following manner: The
customer's order can be provided in writing or via electronic means (such as via
email), each in the language of the respective party. The order represents an offer
to PhoneGuard USA Ltd to enter into a contract for purchase. The contract is closed
only if PhoneGuard USA Ltd Accepts the customer's offer by confirming the order by
email after receiving the order. If this confirmation contains clerical or typographical
errors, or if the prices are based on technical transmission errors, PhoneGuard,
Inc. shall be entitled to rescind, whereby PhoneGuard USA Ltd must prove its error
to the customer. Payments already made will be returned immediately.
2.5 If statutory VAT or other applicable tax is incurred,
it is included in the price. The customer must also pay shipping and the cash on
delivery costs (COD) pursuant to the following provisions (see number 6).
2.6 All information provided by PhoneGuard USA Ltd is limited
in validity to when the customer retrieves/downloads it, if not otherwise labeled,
since information, offers and prices set by PhoneGuard inc are continually updated.
2.7 The GBCs of PhoneGuard USA Ltd are subject to copyright
law. The customer is permitted to retrieve them and save and/or print them in transferable
form. |
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| 3. Customer's Right to Cancel/Legal Instructions
to the Customer |
3.1 Insofar as the customer is a consumer as defined in
Civil Code, he or she shall be entitled to a right of revocation.
Revocation instructions
Right of revocation
You can revoke your order in text form (by letter, fax or email, for example) within
two weeks without giving reasons, or by sending back the item if the item is surrendered
to you prior to the end of the period. The period begins upon receipt of these instructions
in text form, but not before receipt of the goods by the recipient (or in the case
of recurring supply of similar goods, not before receipt of the first partial delivery)
and also not before fulfillment of our information obligations pursuant to Civil
Code. The timely dispatch of the revocation notice or item shall be sufficient for
meeting the revocation deadline. The revocation notice is to be sent to:
PhoneGuard USA Ltd
6574 N. St Rd.7 #278 Coconut Creek FL, 33073
Toll Free: +1 (877) 797-7274
email: info@phoneguard.com
Consequences of order cancellation:
In the event of an effective revocation, the performances received by both parties
are to be returned, and any emoluments taken (interest, for example) are to be surrendered.
If you cannot return the product or the service in whole or in part, or can do so
only in a deteriorated condition, you must pay us compensation for any such amount.
When surrendering things, this does not apply if the deterioration of the things
is to be attributed solely to its examination - as would have been possible for
you in the retail store, for example. Apart from that, you can avoid the obligation
to pay compensation for desertion of the thing being used in accordance with its
intended use by not using the item as your property and refraining from all actions
which negatively affect its value. Items amenable to parcel shipping are to be sent
back at our risk. You must pay the costs of return shipping if the delivered goods
correspond to the order, and if the price of the item to be sent back does not exceed
an amount of $40, or if you have still not provided the consideration or a contractually
agreed partial payment in the event of a higher price for the item at the time of
the revocation. Otherwise, the return shipping is free of charge for you. Items
that cannot be shipped as parcel freight will be picked up at your location. Obligations
to reimburse payments must be fulfilled within 30 days. For you, the period commences
when the revocation declaration or item is dispatched, and for us upon their receipt.
- End of Legal Instructions to the Customer -
3.2 For efficient and customer-friendly handling please return
the product to the address for returns you find in the delivery order.
3.3 The right of revocation does not exist for the delivery
of goods that were produced according to customer specifications, or which have
been unambiguously customized to personal requirements, or for the delivery of audio
or video recordings or of software, if the delivered data media have been unsealed
by the customer.
3.4 In addition, the right of revocation does not apply
to the sale of serial numbers for the activation of demo versions of the software,
or for the activation of OEM software into a retail version, as soon as the serial
numbers were sent via email or in another form and manner. The right of revocation
also does not apply to the sale of license keys for enabling a download of software,
as soon as the license key has been sent via email or in another form and manner. |
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| 4. Information on Ordering over Electronic
Channels |
4.1 The description of the products in the respective online
shop does not represent a legally binding offer. To order goods through PhoneGuard,
Inc. online shops, the customer must place the goods in the "shopping cart"
(by clicking a corresponding button such as "Buy"). The shopping cart
will be displayed after the selection of an item by the customer for the purpose
of the order. The shopping cart is a list of all the goods that the customer has
selected for the purpose of the order through a click. The quantity of goods can
be changed, or they can be removed from the shopping cart.
4.2 Once the shopping cart contains all the goods required
in the necessary quantities, the order transaction can be continued by pressing
the relevant button". Subsequently, the customer shall be asked for his invoice
and delivery address, and the payment and shipment method desired. Prior to placing
the final order, all the details of the order are displayed in summary and can be
modified by the customer if required.
4.3 The order will be binding for the customer as soon as
the customer has entered payment information and has clicked on the appropriate
button, or upon dispatch of his or her order in the event of payment by invoice/bank
transfer. In the event of a successful transmission, the customer receives a confirmation
for the order by email, through which the offer is accepted. The contract for purchase
is formed with this email confirmation. This confirmation can be printed out.
4.4 The order, including the customer's personal data, will
be stored by PhoneGuard USA Ltd electronically. After ordering, the data for the
order will be visible to the customer if a login area has been set up.
The credit card details will not be stored by PhoneGuard USA Ltd. |
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| 5. Terms of Payment and Retention of Title |
5.1 The customer shall owe compensation, a fee, or a purchase
price when the software license agreement, contract for purchase or service agreement
is finalized. The pay-before-download principle applies to downloads, which means
only after successful payment can the customer download the software from the download
area to his or her computer. Payment can be made by direct debit, bank transfer,
credit card, on account or through the types of payments approved for the portal.
Invoices are to be paid after receipt of the invoice within the period specified
on the invoice.
5.2 If the bank transfer type of payment is selected, the
banking details will be specified for the customer in the order confirmation. The
invoice amount is to be transferred within the period that is specified therein.
The product is delivered when payment is received.
5.3 When paying by credit card, the account is charged after
the goods are shipped. PhoneGuard USA Ltd reserves the right to have credit card
payments verified prior to the acceptance of the order. Cash on delivery (COD) payments
are due upon receipt of the goods.
5.4 When paying by credit card, the customer affirms his
or her agreement that PhoneGuard USA Ltd will clear the order with the credit card
company, and will do so in the manner of online banking in particular.
5.5 Until payment in full is received, the purchased item
or service delivered or otherwise licensed remains the property of PhoneGuard,
Inc. or of the owner of the rights in the software that is the subject matter of
the contract. |
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| 6. Shipping, shipping costs
and customs duties |
6.1 To the extent that the service or purchased item is
not retrieved by the customer via download, but rather is to be shipped, the customer
must pay the shipping costs. A precise calculation of shipping costs and a list
of all selectable shipping methods will be provided during the ordering process
and will be disclosed on the order page in particular. The shipping costs may be
omitted in individual cases in the event of special campaigns or offers. These will
also be displayed during the ordering process and on the order page.
6.2 PhoneGuard USA Ltd does not ship to countries or persons
if such a shipment would violate valid export laws or other provisions of the law.
6.3 For deliveries outside of the European Union, additional
customs duties, customs clearance costs, import duties or taxes can be incurred,
which are to be paid by the customer. These costs are beyond the control of PhoneGuard, Inc. Additional information can be obtained from the relevant customs office. |
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| 7. Software Delivery per Download |
| No shipping costs will be charged by PhoneGuard USA Ltd for software delivery via
download. The customer must provide the remote communications link to PhoneGuard,
Inc. server (internet connection) required for the download, and pay the usage fees
for the remote communications link incurred in the context of the retrieval. |
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| 8. Scope of delivery and right to use acquired
software |
8.1 When software is licensed, delivery is limited to the
object code (executable form) with the basic information provided by the manufacturer
such as, for example, documentation and installation and usage instructions, not
necessarily in paper form. To the extent that delivery is provided via download,
no physical media or any documentation or manufacturer's instructions will be delivered
in paper form, nor are they owed. The customer has no claim to a license for the
source code.
8.2 The software licensed by PhoneGuard USA Ltd is licensed
within the scope of and in acknowledgement of the software publisher's terms of
use by the customer (normally called "End User License Agreement").
8.3 The customer shall be entitled to use the contract software
in accordance with the manufacturer's license provisions, which are made available
when installing the software, as well as at other times.
8.4 The customer may NOT duplicate or decode (decompilation)
interface information from the software. |
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| 9. Warranty and Liability |
9.1 If the purchased item is defective, the legal provisions
of the Civil Code shall be applicable. To the extent that the customer modifies
the delivered software (or has it modified by third parties), warranty claims do
not apply unless the customer can prove that the errors that arise are not to be
attributed to the modification.
9.2 PhoneGuard USA Ltd liability for simple negligence breaches
of duty is excluded, provided that |
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it does not pertain to any material contractual obligations or guarantees, |
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losses from harm to life, limb or health are not involved and |
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Claims under the Products Liability Act remain unaffected. The same applies to breaches
of duty by agents. |
| 9.3 The objection of contributory negligence remains available
to PhoneGuard USA Ltd However, the customer shall be responsible for backing up its
data at regular intervals. In the event of data loss that is the fault of PhoneGuard, Inc., PhoneGuard USA Ltd shall be liable as such exclusively for the costs
of duplicating the data for the backup copies to be created by the customer, and
the restoration of the data that would have been lost even if the data were properly
backed up. |
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| 10. Privacy |
| 10. The customers' information and personal data will be
treated confidentially and stored, processed, used and disclosed to third parties
only to the extent necessary in the context of order processing, legal proceedings
and the maintenance of customer relationships. PhoneGuard USA Ltd complies with the
relevant data protection laws and uses the information and personal data exclusively
pursuant to the provisions of PhoneGuard USA Ltd data protection policy. |
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| 11. Legal Action |
| U.S. law shall be applicable to the contractual relationship to the exclusion of
the UN Convention on Contracts for the International Sale of Goods.For PhoneGuard USA Ltd, United Kingdom is the general jurisdiction
of the customer. |
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| 12. Special Conditions for Contracts with
Companies |
The following deviations from the business conditions detailed above apply to customers
who are not consumers but companies in the meaning.
12.1 The right of return or cancellation according to Item
3 does not apply if the customer is a company in the meaning.
12.2 Notwithstanding number 9, the warranty for entrepreneurial
business transactions shall be restricted in the following manner:
12.2.1 The warranty period is limited to 12 months.
12.2.2 The warranty of PhoneGuard USA Ltd in respect of the
customer - to the extent that the customer is a company in the meaning. - shall
be secondary to that of the software or hardware manufacturer/supplier. To this
purpose, PhoneGuard USA Ltd assigns its warranty claims against the manufacturer/supplier
to the customer in advance, in respect of all software and hardware and/or documentation
or other user manuals. The customer approves this concession. As a consequence,
the customer shall initially make all warranty claims to the manufacturer/supplier.
Litigation should be undertaken if necessary. The statutes of limitation for warranty
claims against PhoneGuard USA Ltd shall be postponed for the duration of legal prosecution.
PhoneGuard USA Ltd shall hand out the contractual documents required for pursuing
legal rights and provide any information required concerning the contracting parties.
The warranty provided by PhoneGuard USA Ltd shall come back into force once the claims
of the manufacturer/supplier provide no chance of success due to legal reasons or
degeneration of assets through insolvency, non-traceability, legal limitations or
existing contrary rights.
12.3 Notwithstanding if the customer is an entrepreneur,
it must review the purchased item or service without delay after receipt, and object
to any defects detected when doing so.
12.4 The liability of PhoneGuard USA Ltd due to any legal
reason is limited by the following provisions.
12.4.1 The liability for damage caused with intent or gross
negligence by PhoneGuard USA Ltd or one of its vicarious agents or representatives
is unlimited in terms of the amount.
12.4.2 In cases of death, injury or damage to health, the
liability of PhoneGuard USA Ltd or one of its vicarious agents or legal representatives
is unlimited in terms of the sum even in cases of simple breaches of duty.
12.4.3 Even liability for damage caused by serious organizational
culpability on the part of PhoneGuard USA Ltd, and damages caused by a quality guaranteed
by PhoneGuard USA Ltd are unlimited in terms of the amount.
12.4.4 If there is a breach of material contractual obligations,
and to the extent that none of the events specified in numbers 12.4.1 through 12.4.2
are involved, the amount of PhoneGuard USA Ltd liability shall be limited to the
losses typically foreseeable at the time the contract was finalized.
12.4.5 All further liability for compensation is excluded,
and liability without culpability is excluded at all times.
12.4.6 Liability according to product liability law remains
unaffected by this.
12.5 The customer can only offset against claims by PhoneGuard, Inc. with legally determined or undisputed claims.
12.6 The business conditions of the customer only apply
when they have exclusively been approved by PhoneGuard USA Ltd in writing.
12.7 Karlsruhe is agreed to as the place of performance
and legal venue the United Kingdom as the place of jurisdiction |
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| 13. Salvatore Clause |
| If any provisions of these General Business Conditions or the agreement closed between
the parties should be void, non-viable or become non-viable, the validity of the
agreement in whole shall not be affected. |
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