1.1 The present General Terms and Conditions apply to all customer orders through the website of KAPITALGO, Wichurastr. 110A, 12249 Berlin (hereinafter referred to as “KAPITALGO”) and customer orders by email.
1.2 The following General Terms and Conditions, in the version applicable on the date of the order, apply exclusively in respect of the business relationship between KAPITALGO and the customer. Deviating conditions of the customer are not recognized by KAPITALGO, unless KAPITALGO has expressly agreed that they shall apply.
2. Contractual language, conclusion of the contract
2.1 The contractual language is German.
2.2 For orders via our website, the following provisions apply to the conclusion of the contract:
2.2.1 The presentation of the goods on our website does not constitute any binding offer to customers, merely representing an online sales brochure.
2.2.2 The sending of the customer’s order by clicking on the “Confirm order” button at the end of the ordering process constitutes a binding offer by the customer to conclude a purchasing contract concerning the goods contained in the order, under the conditions sent with the order.
2.2.3 Following receipt of the order, KAPITALGO shall send the customer an email confirming receipt and acceptance of the order at the premises of KAPITALGO and stating the details of the order (order confirmation). With this email confirmation, the purchase contract is concluded.
2.3 With orders by email, the contract is normally concluded by the customer sending KAPITALGO an enquiry, on the basis of which KAPITALGO sends the customer a binding offer. If the customer accepts this offer, the contract is concluded. If the contract is concluded in any other way, for a special case, KAPITALGO will inform the customer in the course of the email correspondence.
3. “Save” option, inspection of contractual text
3.1 The customer can inspect these General Terms and Conditions in the currently valid version on KAPITALGO’s website. The customer can also print out or save this document, by using the usual functionality of his Internet services program (=Browser: usually “File” -> “Print” or “Save as”).
3.2 In addition, the customer can archive the order information, by printing the data summarized on the last page of the order process on the website using the functions of his browser, or the customer can await the order confirmation that KAPITALGO shall send to the customer by email following conclusion of the order, to the email address indicated by the customer. This email shall reproduce the details of the customer’s order, together with these General Terms and Conditions, and can be printed out or saved using the customer’s email program.
4. Prices, delivery charges and payment conditions
4.1 All prices stated on the KAPITALGO website include Value Added Tax at the statutory rate.
4.2 If KAPITALGO sends the software by download or email, no separate delivery charge is made. If a delivery charge does arise in an individual case, for example because delivery of the software by data carrier is agreed, KAPITALGO shall inform the customer before the binding order is placed.
4.3 For orders for standard software products, KAPITALGO offers the following methods for payment by the customer:
4.3.1 Advance payment: payment in advance is effected by bank transfer. For advance-payment orders, after the order has been placed the customer receives a communication in the order acknowledgement stating the bank details and the order number that has been allocated to the order. Please state this order number together with your first name and surname as the “transaction purpose” when making the transfer. Please note that receipt of payment can take one to five days depending on the day of the week and the speed of processing by the bank concerned. Your order cannot be processed until payment has been received.
4.3.2 In order to be able to make payment using PayPal, the customer requires a customer account with PayPal. After submitting an order on the KAPITALGO website, the customer will automatically be transferred to the PayPal website. Here the customer will be asked to log in in order to confirm the payment. If you do not yet have a PayPal customer account, you can register at www.paypal.de.
4.4 For software orders to be individually programmed to the customer’s requirements, the method for payment by the customer is agreed in connection with the order.
4.5 No right to compensation for the customer applies unless the customer’s counter-claims are finally and conclusively established, or have not been disputed or have been acknowledged by KAPITALGO. The customer is only authorized to exercise a right of retention if his counter-claim is based on the same legal relationship.
4.6 If you are placing an order from Switzerland or another country that may levy import duties, please note that KAPITALGO has no influence on the amount of the customs duties or taxes to be paid in your country. In this case, please make enquiries regarding the costs that will arise for you in connection with an order and which will not be charged until the goods are imported into your country. These charges will NOT be levied by KAPITALGO, and are NOT already included in the prices indicated by KAPITALGO.
5.1 Unless otherwise agreed, software is delivered as download link in the order history or by email to the email address communicated by the customer. There is no obligation to provide documentation, manuals or operating instructions unless this is expressly stated in the product description; in this case, the items in question shall also be delivered electronically.
5.2 For orders concerning standard software products: if KAPITALGO accepts the customer’s order, delivery of the goods shall be authorized immediately on receipt of the order. If KAPITALGO does not accept the order, the customer shall be informed immediately by email. For advance-payment orders, delivery shall not be made until full payment has been received by KAPITALGO.
5.3 For orders for software to be individually programmed to the customer’s requirements: the software shall be delivered on the delivery date agreed in connection with the order.
5.4 Delivery of software is only ever effected in object code. The source code for the software is not the subject of the contract, and, in the absence of any agreement to the contrary, is not to be handed over to the customer.
6. According of rights of use
6.1 With regard to the software delivered, KAPITALGO accords to the customer a simple, non-exclusive right of use of the software in connection with the account and broker as stated on the order. Unless otherwise agreed, the use of the software is only permitted for the customer’s private purposes. Unless any time limit has been agreed, the right of use is accorded on a permanent basis.
6.2 Copies of the software may only be made to the extent necessary for the use of the software as contractually agreed. The customer may make back-up copies of the software in accordance with technical standards as deemed necessary.
6.3 If KAPITALGO provides the customer with additions to, or a new version of the software, as a subsequent improvement or by way of maintenance or support services provided free of charge, and this replaces or supplements the software previously supplied, then this addition or new version is also subject to the provisions of these General Terms and Conditions.
7. Free updates and upgrades
If KAPITALGO offers an updating service for the software on the basis of the product description, the following applies: during the first twelve months after the software is ordered, the customer shall receive free of charge by email all updates and upgrades of the software issued by KAPITALGO in the context of the software’s ongoing further development as carried out by KAPITALGO for all its customers, unless the customer has said, at the time of the order or at any later date, that he does not wish to receive these. The installation shall be effected by the customer. An update is the designation for a new version of an item of software that rectifies a defect or improves existing functions without impairing the existing functioning of the software. An upgrade is a new version of the software that adds new functions and/or improves existing functions. An upgrade can cause the software to behave differently. KAPITALGO shall inform the customer at the time of delivery concerning the effects of the installation of the update or upgrade. The customer shall choose whether or not to install the updates or upgrades supplied.
8.1 The guarantee provided by KAPITALGO is based on the statutory regulations.
8.2 Subject to the information in the product description or special agreements, KAPITALGO provides no guarantee that the software will satisfy the requirements and purposes of the customer, will be compatible with other programs selected by the customer, or will be capable of running on any specific hardware configuration.
8.3 KAPITALGO provides no guarantee and accepts no liability in respect of “third party software”. Third party software in this sense is in particular programs that are used in conjunction with the software forming the subject of the contract, such as the customer’s operating software, and also includes programs whose functional scope is extended by the software (e.g. the “Metatrader” software).
8.4 In case the customer has claimed the removal of defects and KAPITALGO is undertaking steps of finding and fixing any defects, the customer, as long as it is not deemed as unreasonable, must collaborate free of charge in the necessary scope to find a solution to the defect. This includes providing information on the circumstances of the described defect / failure (e.g. system configuration) as well as the assistance in providing error codes from the software and providing log – files generated by the software to KAPITALGO.
8.5 If it turns out that the defect of the software is not due to a failure of the software itself, KAPITALGO is entitled to charge expenses for the analysis and solution of the problem based on an hourly rate of 120 EUR if the customer has realized or negligent not realized that the defect is not caused by the provided software.
8.6 The general warranty claims of a customer are not affected by the regulations of paragraph 8.4 and 8.5.
9.1 KAPITALGO is liable without restriction, in accordance with the statutory provisions, for any losses of the contracting partner caused by malicious intent or gross negligence on the part of KAPITALGO or its agents. The same applies in respect of personal injury and damage as envisaged in the German Product Liability Act [Produkthaftungsgesetz].
9.2 In other respects, the liability of KAPITALGO in connection with compensation claims – irrespective of the legal basis of any such claims – shall be limited in accordance with the following provisions, unless otherwise arising from any guarantee provided by KAPITALGO:
With regard to loss caused by ordinary negligence, the liability of KAPITALGO is limited to typically foreseeable loss only.
With regard to delay damage caused by ordinary negligence, the liability of KAPITALGO is limited to typically foreseeable loss, and no more than 5% of the total price agreed in the contract concerned.
The liability of KAPITALGO for loss of data and/or programs due to ordinary negligence is limited to the typical restoration cost that would have arisen if the contracting partner had backed up the data regularly and in a manner appropriate to the circumstances.
9.3 The provisions of the above paragraph also apply accordingly in respect of any limitation of the duty of compensation for futile expenses (§ 284 of the German Civil Code).
9.4 The above liability restrictions apply also in favor of agents of KAPITALGO.
10. Applicable law
German law applies exclusively, to the exclusion of the UN Convention on CISG, even if the ordering party has their place of residence or place of business abroad.