THE TopWare Interactive – AC Enterprises e.K.


1. In General

Sales by THE TopWare Interactive – AC Enterprises e.K. (TopWare) to consumers shall take place solely and exclusively in accordance with the following conditions of sale.

2. Offer, Availability, Order, Price, Acceptance

2.1 Offers from TopWare are without obligation and dependent on availability. Specified performance data and product descriptions are not binding. Customer orders (also insofar as they pertain to offers from TopWare) shall require written acceptance by TopWare in every case. Should such acceptance not take place within two weeks, the Agreement shall be deemed as not having come into existence. No communication on the part of TopWare shall not be construed as assent. In addition, the carrying out of deliveries and performances or the acceptance of payments shall not substitute for any declaration of acceptance.

2.2 The prices set down in offers from TopWare include legal VAT and additional costs of all kinds (e.g. transport costs) and are – insofar as they accrue - shown separately.

3. Place of performance, delivery and performance, third parties

3.1 If no other, deviatory agreement is made, place of performance shall be the registered office of TopWare. In the case of shipping from a site other than the registered office of TopWare, place of performance shall be the site of the ordered merchandise.

3.2  Named deadlines and delivery deadlines are non-binding. Otherwise §5 of these General Terms and Conditions of Business shall apply accordingly.

3.3 TopWare shall be authorized to carry out deliveries and performances through third parties, or have them carried out by said third parties. TopWare is entitled to make partial deliveries, unless such deliveries are not in the interests of the customer.

3.4 TopWare may retain ordered deliveries, if the customer has not paid earlier deliveries on time or if an essential deterioration of his financial situation has meantime taken place. TopWare has the right, in every instance, to demand advance payments. The customer may not make any counter-claims against TopWare which arise from retention of the merchandise.

4. Transport costs, Passing of Risk, Retention of Ownership

4.1 Shipping shall take place on the account of and at the risk of the customer. Risk shall pass to the customer when the merchandise leaves the dispositive domain of TopWare. TopWare is not obliged, but nevertheless has the right, to take out transport insurance at the expense of the customer.

4.2 TopWare shall retain the rights of possession for the delivered merchandise until all payment demands arising from the purchase agreement have been met.

5. Warranty, Damages

5.1 In the case of defective merchandise not manufactured by TopWare, TopWare will cede its own rights and claims against the manufacturer or against the person(s) who purchased the merchandise from TopWare to the customer, insofar as such rights and claims exist. The customer is obliged to pursue such rights and claims against the manufacturer / seller, before taking any form of recourse against TopWare. Only if such recourse fails due to circumstances beyond the customers control or due to circumstances which make such recourse impossible from the outset, the customer may call directly upon the services of TopWare, under retrocession of said rights and claims. In this case the remaining limitations of the rights and claims against TopWare shall remain unaffected in accordance with these General Terms and Conditions of Business.

5.2 TopWare is not liable for defects in the merchandise which third parties have changed, reconditioned or repaired, or which has otherwise been tampered with during the warranty period, unless it can be proven that hidden defects already existed at the time of passing of risk.

5.3 In such cases, the merchandise shall be returned to TopWare for debugging/repair, unless TopWare decides otherwise. TopWare is only obliged to debug/repair the merchandise or provide replacement delivery if the customer has paid all or part of the purchase price, insofar as the sum paid corresponds to the value of the defective merchandise. If TopWare intends to make subsequent improvement or replacement, TopWare is only obliged to deliver upon payment of the full purchase price (DvP).

5.4 Insofar as no exception ensues hereinafter, claims made by the customer which are over and above the statutory warranty rights - no matter the legal argument or grounds – shall be excluded. TopWare is not liable for damages which did not accrue from the delivered merchandise itself, and, in particular, not liable for lost profits or miscellaneous pecuniary loss. This shall not apply if said damage has been caused by malice or gross negligence, and damages arising from injury to life, body or health are involved, or the liability to pay damages has arisen from the Product Liability Act. In addition, this shall not apply if claims for damages are made on account of non-fulfillment due to the lack of warranty of qualities. If TopWare neglects either a cardinal obligation of the Agreement or a material duty, the liability to pay damages shall be limited to foreseeable damages as per standard contract provisions.

6. Payments, Set-offs, Retention, Taking back Merchandise through Goodwill

6.1 Payments are due immediately and without deductions after receipt of the invoice (or the invoice for partial delivery) by the customer. TopWare has the right to demand pre-payment. TopWare has the right, but is not obliged to offer modern payment systems (e.g. direct debit, credit cards, PayPal). If any costs arise as a result of using these payment systems and such costs arise through, or are caused by, a non-payment for which the customer bears responsibility, TopWare may charge a service fee of EUR 10.00. The customer has the burden of proof of lesser damage, while TopWare has the right to substantiate and assert greater damage. The customer possesses neither set-off rights nor rights of retention, if such rights have neither been legally established, nor recognized by TopWare.

6.2 If merchandise is taken back by TopWare, and such merchandise is outwith the spheres of warranty and retrosettlement due to the exercising of legal powers of revocation (§. 7) and /or due to special agreements (goodwill), the customer, after return delivery, shall receive a non-payable merchandise voucher to the value of the merchandise to be returned. Merchandise which was not entitled to be returned, and merchandise returned which was not in the same condition as originally delivered by TopWare, shall, at the option of TopWare, be (a), re-delivered to the customer or (b), be prepared for pickup by the customer, both (a) and (b) at the customers expense. For such re-delivery, TopWare may demand an advance payment on shipping costs - this payment may amount to, but not exceed, the entire amount of the actual shipping and handling costs. Merchandise prepared for pickup by the customer may be disposed of, at the expense of the customer, after expiry of a time limit of three months from the date of the notice of pickup availability. Otherwise, any legal warranty claims pertaining to restitution obligations shall apply, and shall be deemed to be in favor of TopWare. The costs of the return shipment will be borne by the customer; TopWare may however refuse to accept charges-collect merchandise.

7. Powers of Revocation (14-day money-back guarantee)

7.1 Personal power of revocation shall only apply to cases regulated by law. The customer can - provided that he is a consumer as defined in § 13 BGB (German Civil Code) - revoke his contractual declaration within two weeks without specifying any reason(s) for such action; such revocation may be in text form (e.g. as a letter, e-mail or fax) or validated by return of the merchandise. Such revocation needs no justification and shall be validated either in writing or by returning the merchandise within a time period of two weeks. The revocation shall be addressed to: TopWare Interactive AG, Rittnert Straße 36, 76227 Karlsruhe. Fax: 0049-(0) 721-4647222. E-mail: To meet the deadline, timely mailing shall suffice.

7.3 In the event of a valid revocation, performances received by both parties shall be refunded. If the customer can neither wholly nor partly return the merchandise, (or if he can only return it in a deteriorated condition), the customer must make good the corresponding reduction in value in the case of revocation. In the case of transfer of merchandise, this does not apply if the deterioration of the merchandise is found to be solely due to testing (such as may be carried out in a store). From a merchandise value of EUR 40 upwards, TopWare will refund the costs of the return shipment, provided that the purchase price has already been paid, either wholly or in part.

7.4 Return shipments shall be prepaid and insured - in cases of retrosettlement after valid revocation, TopWare shall refund these costs. Any additional costs involved in a charges-collect shipment shall be borne by the customer. The purchase price shall be returned to the customer only when the returned merchandise has been received by TopWare.

7.5 Revocation is excluded if the subject of the Agreement is the delivery of software or of a data disk and said data disk has been unsealed. Revocation is also excluded if “Registration Keys” or similar methods for activating the software are to be delivered, and delivery has already been carried out. The same applies to software downloaded from the TopWare website.

8. Assignment, Applicable Law, Severability clause

8.1 The customer is not entitled to assign his claims arising from the Agreement to any third party.

8.2 If any provision of these General Terms and Conditions of Business becomes wholly or partially invalid, or if an omission be made in any provision, ion, the validity of the remaining provisions shall not be affected. The parties shall undertake to replace any invalid or omitted provision by a legal, economically-equivalent provision which is commensurate with the meaning and purpose of this Agreement.

8.3 The laws of the German Federal Republic shall apply to all legal relationships between TopWare and the customer. The use of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

October 2006