General terms and conditions

§ 1 Applicability, definitions of terms

(1) , , , (hereinafter referred to as “we” or “Kiwi Health”) operates an online store for Digital Goods under the website https://kiwi-health.de. The following general terms and conditions apply to all services between us and our customers (hereinafter: “Customer” or “you”) in the version valid at the time of the order, unless otherwise expressly agreed.

(2) “Consumer” within the meaning of these Terms and Conditions is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his commercial nor to his independent professional activity. “Entrepreneur” means a natural or legal person or a partnership having legal capacity who, when entering into a legal transaction, acts in the exercise of his commercial or independent professional activity, a partnership having legal capacity being a partnership endowed with the capacity to acquire rights and incur liabilities.

§ 2 Conclusion of the contracts, storage of the contract text

(1) The following regulations on the conclusion of the contract apply to orders placed via our online store at https://kiwi-health.de.

(2) Our product presentations on the Internet are non-binding and not a binding offer to conclude a contract.

(3) Upon receipt of an order in our online store, the following provisions shall apply: The customer makes a binding offer to enter into a contract by successfully completing the order procedure provided in our online store. The order is made in the following steps:

  1. Selection of digital goods,
  2. Adding the products by clicking the appropriate button (e.g. “Add to cart”, “Add to shopping bag” or similar),
  3. Checking the information in the shopping cart,
  4. Calling up the order overview by clicking on the corresponding button (e.g. “Continue to checkout”, “Continue to payment”, “To order overview” or similar),
  5. Entry/verification of address and contact details, selection of payment method, confirmation of the GTC, privacy policy and cancellation policy,
  6. If the agreed quality of the goods deviates from their usual quality and conditions of use, confirmation of a negative quality agreement,
  7. Completion of the order by pressing the button “Subscribe now”. This constitutes your binding order.
  8. The contract is concluded when you receive an order confirmation from us within three working days to the specified e-mail address.

(4) If the contract is concluded, the contract is concluded with , , , .

(5) Before ordering, the contract data can be printed out or electronically saved using the browser’s print function. The processing of the order and transmission of all information required in connection with the conclusion of the contract, in particular the order data, the GTC and the cancellation policy, is carried out by e-mail after the order has been placed by you, partly automatically. We do not store the contract text after conclusion of the contract.

(6) Input errors can be corrected using the usual keyboard, mouse and browser functions (e.g. “back button” of the browser). They can also be corrected by canceling the order process prematurely, closing the browser window and repeating the process.

(7) The processing of the order and transmission of all information required in connection with the conclusion of the contract shall be carried out by e-mail, partly automatically. You must therefore ensure that the e-mail address you have provided to us is correct, that the receipt of e-mails is technically guaranteed and, in particular, that it is not prevented by SPAM filters.

§ 3 Subject matter of the contract and essential characteristics of the products

(1) The subject matter of the contract for our online store is:
The sale of digital goods, e.g. software or media downloads. The specific digital goods offered can be found on our item pages.

    (2) If a contract for goods with digital elements or for digital products (digital content and services) is concluded with a consumer and the statutory update obligation is not effectively excluded by contract, the function-maintaining updates and necessary security updates are also subject matter of the contract.

    (3) The essential characteristics of the digital goods can be found in the item description. If the agreed quality of the goods deviates from their usual quality and conditions of use, this is expressly stated in the item description (negative quality agreement). If the customer has given his express consent to the negative quality deviation, this defines the subject matter of the contract.

    (4) The sale of digital products shall be subject to the restrictions evident from the product description or otherwise resulting from the circumstances, in particular with regard to hardware and/or software requirements for the target environment. Unless expressly agreed otherwise, the subject matter of the contract is only the private and commercial use of the products without the right to resell or sublicense.

    § 4 Prices, shipping costs and delivery

    (1) The prices listed in the respective offers as well as the shipping costs are total prices and include all price components including all applicable taxes.

    (2) The respective purchase price is to be paid before delivery of the product (advance payment), unless we expressly offer purchase on account. The payment methods available to you are shown under a correspondingly designated button in the online store or in the respective offer. Unless otherwise specified in the individual payment methods, the payment claims are due for payment immediately.

    (3) In addition to the stated prices, shipping costs may be incurred for the delivery of products, unless the respective item is designated as free of shipping costs. The shipping costs will be clearly communicated to you again on the offers, if applicable in the shopping cart system and on the order overview.

    (4) All offered products are ready for shipment immediately (after receipt of payment with the exception of the free 30-day demo version), unless clearly stated otherwise in the product description.

    (5) Delivery takes place worldwide.

    (6) If the delivery of the goods fails for reasons for which you are responsible, you shall bear the reasonable costs incurred by us as a result. This does not apply with regard to the costs for the return shipment if you effectively exercise your right of withdrawal. If you effectively exercise your right of revocation, the provision made by us in the revocation instructions shall apply to the return costs.

    § 5 Updates, updates, obligations of the consumer to cooperate

    (1) If a contract for goods with digital elements or for digital products (digital content and services) is concluded with a consumer and the statutory update obligation is not effectively excluded by contract, the customer shall be provided with regular updates that ensure the functionality and (IT) security of the purchased item (e.g. security updates against new security threats, etc.).

    (2) We are also authorized to use a third party (e.g. the manufacturer or its supplier) to provide the updates.

    (3) The period in which updates are provided depends on the type of item purchased and is explained in the item description.

    (4) Consumers will be informed about the provision of updates and the proper installation of these, provided that this has been confirmed by the customer via opt-in in the customer area under “Communication”.

    (5) The customer is obliged to install any updates provided in accordance with the installation instructions.

    § 6 Right of retention

    (1) You may only exercise a right of retention insofar as it concerns claims from the same contractual relationship.

    § 7 Right of withdrawal

    As a consumer you have a right of withdrawal. This is governed by our cancellation policy.

    § 8 Contract language

    Only German and English are available as contract languages.

    § 9 Liability

    (1) Subject to the following exceptions, our liability for contractual breaches of duty and for tortious acts shall be limited to intent or gross negligence.

    (2) We shall be liable without limitation in the event of slight negligence in the event of injury to life, limb or health or in the event of breach of a material contractual obligation. If we are in default of performance due to slight negligence, if performance has become impossible or if we have breached a material contractual obligation, liability for material damage and financial loss resulting therefrom shall be limited to the damage typically foreseeable under the contract. An essential contractual obligation is an obligation the fulfillment of which makes the proper execution of the contract possible in the first place, the violation of which endangers the achievement of the purpose of the contract and the compliance with which you may regularly rely on. This includes, in particular, our obligation to take action and to fulfill the contractually owed performance, which is described in § 3.

    (3) If, when purchasing goods with digital elements or when purchasing digital products (digital content and services), the customer fails to install an update that has been provided to him and about whose availability he has been informed within a reasonable period of time, we shall not be liable for a material defect that is solely due to the lack of this update.

    § 10 Warranty

    (1) The warranty shall be governed by the statutory provisions.

    (2) The warranty period for delivered goods vis-à-vis entrepreneurs shall be 12 months.

    (3) As a consumer, you are requested to check the item/digital goods or the service provided for completeness, obvious defects and transport damage immediately upon fulfillment of the contract and to notify us and the carrier of any complaints as soon as possible. If you do not comply with this, this will of course have no effect on your statutory warranty claims.

    § 11 Final provisions/dispute resolution

    (1) German law shall apply. In the case of consumers, this choice of law shall apply only to the extent that it does not deprive them of the protection afforded by mandatory provisions of the law of the country of the consumer’s habitual residence (favorability principle).

    (2) The provisions of the UN Convention on Contracts for the International Sale of Goods shall expressly not apply.

    (3) If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the Customer and the Provider shall be the Provider’s registered office.

    (4) The European Commission provides a platform for online dispute resolution (OS), which you can find at https://ec.europa.eu/consumers/odr. We are neither obliged nor willing to participate in a dispute settlement procedure before a consumer arbitration board.