By placing an order for Products, you (the “Customer”) accept and agree to these terms and conditions.
A binding contract will only be formed upon GSMK giving notice of its formal acceptance of an order.
Acknowledgment of receipt of an order shall not constitute acceptance of an order.
1. Parties and Definitions
GSMK mbH (“GSMK”) is the seller of Products and/or the supplier of Services for the purposes of Customer’s rights and concerns relating to Products and/or Services. GSMK mbH is a company registered and established in Berlin, Germany, with registration number HRB 89497 in the register of corporations at the district court of Berlin-Charlottenburg. Its statutory seat is at Marienstrasse 11, 10117 Berlin, Germany.
GSMK’s European VAT ID is DE 813 827 620. In these terms and conditions: GSMK is referred to as “GSMK”, “we” or “us”; “Customer” or “you” refers to the person (a natural person or other legal entity) who orders Products or Services via this or other GSMK websites or a GSMK telephone call centre, and whose order for Products or Services is accepted by GSMK; “Contract” is the contract containing these terms and conditions, formed by GSMK’s acceptance of your order, and credit card or other payment details; “Products” are the products listed as items for sale on GSMK websites; “Services” are any services available from GSMK through GSMK websites, for example, delivery or packaging services; “Terms” are these terms and conditions of sale; “GSMK websites” are the websites operated by or on behalf of GSMK including those located at the internet domain with the URL http://www.GSMK.de; and “day” refers to a calendar day.
Application of Terms and Conditions: Customer’s (your) purchase of Products or Services, whether through a GSMK website or a GSMK telephone call centre, is subject to these Terms and no other terms or conditions shall apply. These Terms override any other terms or conditions referred to by Customer or in any course of dealing. A consumer is entitled to notify the seller that he withdraws from the sale, without penalty and without giving any reason within 7 working days after the day of delivery. For further information on returns: See section 15 or phone GSMK on the numbers listed on GSMK’s website.
3. Changes to Terms and GSMK websites
GSMK may amend these Terms, including payment, guarantee and warranty terms, without notice. GSMK also reserves the right to modify the terms of separate Product guarantees, at any time. GSMK may provide notices of changes to GSMK websites, the Terms and other matters by displaying notices or hypertext links to notices or by simply making the changes on the relevant GSMK website. Frequent review of GSMK websites and these Terms is recommended. However, Contracts concluded on the basis of previous terms and conditions remain unaffected. Although care is taken to ensure the accuracy of the information on GSMK websites, they could include inaccuracies or typographical errors, including pricing errors. GSMK shall not be obliged to honour, nor be liable in respect of, such errors. GSMK and third party suppliers may make improvements and/or changes in Products, Services, service programs, prices and other details described in GSMK websites, at any time. Changes are periodically made to update GSMK websites.
4. Product information and availability changes
GSMK continually updates and revises Products. GSMK may update, revise and/or discontinue Products and/or any peripheral products at any time. GSMK may revise prices for Products listed as available items on GSMK websites at any time. A price remains valid only for the duration of the day on which Customer visits the page of the GSMK website displaying that price or the day on which Customer is informed of the price by GSMK (through a telephone call centre or otherwise). GSMK displays current Products at http://www.cryptophone.de. GSMK endeavours to maintain Product availability. However, Product availability constantly changes and different Products and Product groups may have different availabilities. All orders are subject to availability of the relevant Product(s). GSMK reserves the right to prioritise orders and to allocate limited stock between orders as it deems fit. Any weights and measurements stated on GSMK websites are approximate, all monitor screens are measured diagonally and all monitor screen images are simulated pictures.
The price of Products shall be GSMK’s currently applicable price at the date and time of acceptance of the Customer’s order. This may be specified on GSMK websites or at Product purchase “check-out”, but the definitive price shall be that which is notified to Customer by GSMK on acceptance of the order by GSMK. Any incorrect prices on GSMK websites shall be void and of no effect and in respect of any orders placed for incorrectly priced Products, the correct price as determined by GSMK shall be notified to the Customer and, if the Customer wishes to continue with the order, substituted in place of the incorrect price. Prices do not include shipping or handling costs, transport insurance, VAT (or other revenue tax), duty and other taxes, levies or charges of any authorities, unless otherwise specified, or otherwise required by applicable law. You agree to pay tax, shipping and handling costs for Products, and any other charges described in the previous sentence (if applicable), as specified in the invoice issued by GSMK after purchase of Products from GSMK.
6. Manner of Payment
GSMK accepts payment by bank wire transfer. GSMK does not accept other means of payment (e.g. cheque) without GSMK’s prior agreement through its telephone call center or otherwise. Payment options may vary from country to country.
7. Terms of Payment
Customer must tender payment (via wire transfer or other payment means accepted by GSMK) on or before the delivery of Products unless otherwise agreed with GSMK. Invoicing and payment collection by GSMK may be effected through third parties. If Customer has credit at GSMK, then GSMK will charge Customer’s account on shipment, after a Contract has been concluded (i.e. after GSMK has verified Product availability and accepted the Customer’s order and payment method).
8. Order Acknowledgment, Order Acceptance, Contract formation
All orders for Products placed by you with GSMK are subject to acceptance by GSMK. GSMK may at its sole discretion accept or reject orders, or advise you of its inability to process orders. GSMK may send you an acknowledgement of receipt of an order, by e-mail or other medium (including telephone). Such an acknowledgement of receipt may be automatically generated and shall not constitute an acceptance of the order. GSMK websites through which orders can be placed may contain automatic means for identifying and alerting you to certain types of input error before you place your order. Such means may not identify all errors or omissions and you should ensure that the information you submit in your order is accurate and complete. If an order placed online through a GSMK website, by e-mail or by telephoning a GSMK call centre is accepted, GSMK may advise of its acceptance of the order by e-mail or other written form. GSMK reserves rights to acknowledge or accept verbally (by telephone) telephone orders placed through its call center or similar facilities. Any Contract is dependant and conditional upon GSMK’s verification of availability and acceptance of both your order and your credit card or other payment details. Unless and until GSMK confirms acceptance of both of these items, GSMK has no obligation to provide any Products or Services. Where Customer has elected to make payment other than with a credit card (and GSMK has accepted that payment option), GSMK is entitled to consider an order or Contract cancelled with or without notice to Customer, if GSMK does not receive that payment within 10 days of the date of the relevant order acknowledgement. We maintain records of orders, order acknowledgements and Contracts (including these Terms and order acceptances) and retain these for a reasonable period following delivery. Whilst we may if necessary (and only on written request) be able to provide you with a copy of your Contract, these are not made generally available to Customers. We recommend that you retain a printed copy of these Terms with a copy and/or note of your order, order acknowledgment, order acceptance, payment method acceptance and invoice as evidence of purchase.
9. Account Information
You are solely responsible for 1) providing true, accurate, current and complete information about you as prompted in the GSMK website account details section or as requested by a GSMK telephone call centre agent (“Account Information”), and 2) maintaining and promptly updating Account Information to maintain its accuracy, currency and completeness. You are solely responsible for the security of any password provided to you for purposes of facilitating Product purchases or other matters via this and other GSMK websites. GSMK shall not be liable for any unauthorized use of passwords.
Products will be delivered to delivery addresses within any country of the European Economic Area or Switzerland (but excluding any countries that are not listed as being available for selection through the country selector on the GSMK website or in the list of countries available through the GSMK telephone call centre, where suitable logistics and/or support arrangements may currently not be in place) only, except as otherwise exceptionally agreed with GSMK. GSMK will use its discretion in selecting a reputable carrier and appropriate means of delivery. GSMK may deliver Products by installments in any sequence. Where Products are delivered by installments, each installment is deemed to be the subject of a separate Contract. No default or failure by GSMK in respect of one or more installments will affect the Contract in respect of Products previously delivered, or undelivered Products. If GSMK notifies you that it is unable to deliver any installment of Products, you will be deemed to accept those installments already delivered (subject to applicable law).
11. Delivery Date
GSMK aims to deliver promptly. However, there may be reasons for GSMK’s inability to ship according to its target dates (most of which are beyond GSMK’s control). Accordingly, any dates given by GSMK for the delivery of Products are estimates only, and GSMK cannot and does not undertake that delivery will occur on any specified dates. However, you have the option of cancelling your order at any stage prior to despatch of your Products by GSMK. You may also have a right to return Products after they have been delivered (see “Your Right to Return and Returns Policy” below). If Products cannot be delivered by any estimated or target dates given by GSMK, GSMK may elect to cancel the order and refund any money paid by the Customer. If an order is cancelled, GSMK’s only obligation shall be to refund any money paid by the Customer to GSMK.
GSMK retains full legal title to Products until it has received in full all amounts due on those Products and (to the extent permitted by applicable law) payment on any other Products that you have ordered. GSMK reserves rights (subject to applicable law) to terminate Customer’s right to use, sell or otherwise deal in Products, and to enter the premises of Customer and repossess Products (or to instruct a third party to do so), if payment is not made when due, or if the credit card company declines payment or requires GSMK to return any payment made for the Products, for any reason. Title to any software comprising, included in or with Products remains with GSMK or the relevant licensor, notwithstanding payment.
13. Firmware Licences
All firmware, including pre-loaded firmware contained in hardware Products, is licensed and not sold. It is licensed either by GSMK or the relevant software owner to you subject to the relevant firmware end-user licence agreement or other terms included with the firmware and/or with the Product or Services. Firmware may not be disassembled, decompiled, reverse engineered, merged or combined with any other software, copied, translated, adapted, varied or modified (save as expressly permitted by applicable law) nor may it be distributed in any form. Where express software licence terms are not supplied, firmware is licensed on a non-exclusive, non-transferable, single user basis for use only with the accompanying Product. If you do not accept the terms of any applicable firmware licence, subject to the exceptions in paragraph 16 below, you should return the Products unused and “as new” in accordance with, and within the time period set out in, paragraph 15 below.Note: to qualify for a refund, shrink-wrap firmware must not be opened (see paragraph 16 below). GSMK guarantees or warranties do not include the correction or avoidance of software defects or errors or the loading or re-loading of Customer’s applications software or data or any reconfiguration of Products beyond reloading the operating system software as installed in the Products before shipment (subject to software availability).
14. Your Acceptance of Products
You have the responsibility for examining the Products on delivery and verifying heir condition, and that the content of the Product package is complete. Products will be considered to have been accepted by you on delivery, as in good condition, and with all accessories, components and other products and content to be contained in or packaged with the Product, and as otherwise in accordance with the Contract, unless you have on delivery or promptly thereafter inspected the Products and notified GSMK of any deficiencies or defects.
15. Your Right to Return and Returns Policy
You may return purchased Products for any reason for a full refund of the Product purchase price actually paid within 7 working days following the date you receive the Products (or such longer period stipulated by applicable local law), subject to compliance with the following:You must obtain a GSMK return reference number. This number may be obtained from GSMK via telephone or fax, on the contact number(s) mentioned in GSMK websites. You must return the Products to the address and in the manner indicated on the return documentation. The GSMK return reference number must be prominently displayed on the outside of the parcel in which the Products are returned to GSMK. Your GSMK invoice must be enclosed with the returned Products. You must prepay (i.e. prior to any reimbursement of the Product price by GSMK) the Product carriage/delivery charges and assume all risk of loss and damage to Products while in transit to GSMK. Products must be returned with unbroken seal in the original packaging, in “as new” condition, and with all component products, parts, accessories, warranty cards, manuals and other documents and items. If you return Products (1) which have been damaged or used, (2) without a GSMK return reference number, (3) after the 7 working-day returns period (or other period specified by applicable law), (4) without proper or with missing packaging, (5) parts of which, including components, included products, accessories, packaging, boxes, documents and/or other items are damaged or missing, or (6) without pre-paid delivery, GSMK retains the right either to refuse to refund Product purchase price (subject to applicable local law), or to charge you repair, restocking or related fees and delivery charges. GSMK may in that case deduct those fees and charges from any payments to be refunded to you. On return of Products, GSMK will, subject to the above qualifications, repay the actual amount paid to GSMK, less any fees and charges due to GSMK (as per the above), by crediting your relevant credit card or bank account (or other means). The issue by GSMK of a return reference number shall not constitute an acceptance or acknowledgment of any right to return Products, except to the extent that these Terms or mandatory applicable laws confer such a right.
16. Exceptions to right to return
The right of return does not apply if you do not purchase Products or Services as a consumer. The right of return and refund does not apply to software sold with GSMK products, or as a separate product, if the license seal has been broken and/or shrink-wrap packaging opened.
17. Resale of parts etc.
Customer shall not resell Product parts, components or accessories packaged with the Products. GSMK may (among other reasons) reject orders placed by Customer if Customer breaches this term (with regard to any Products) or if GSMK reasonably suspects that Customer has breached or will breach this term.
18. Guarantees and Warranties
GSMK Product Subject to the qualification with respect to statutory rights (below), to the fullest extent permitted by applicable law, GSMK gives no guarantees or warranties with respect to Products or Services, additional to those in the guarantee card included with the Products, or, in the case of optional extended guarantees issued by GSMK, additional to those extended guarantees (in each case, “Guarantees”). Guarantee cards and Typical Guarantee terms and exceptions In the Guarantee cards included with Products, GSMK gives certain warranties and service undertakings concerning the Products. The terms of the Guarantees applicable to the Products you order may vary depending on the relevant Product, country of sale or intended use of the Product. In the Guarantees, GSMK (as stated in the relevant Guarantee) typically guarantees the Product to be free from defects in materials and workmanship for a period of 1 year (or other stipulated period) from original purchase. If, during that period, the Product proves defective in materials or workmanship, the relevant service center, facility or other service option will repair or replace the Product or defective parts, subject to exceptions stated in the relevant Guarantee. Repair or replacement of defective Products or parts in accordance with the relevant Guarantee terms is (to the fullest extent permitted by applicable law) your only and exclusive remedy for defective Product covered by a Guarantee. However, the Guarantees (and these Terms) do not affect or detract from, and should not be read to affect, your statutory rights under applicable law (whether as a consumer or otherwise) which cannot be waived or limited by contract, and you may assert your rights at your sole discretion.The following are some typical exceptions to Guarantee coverage (stated in the Guarantees):A Guarantee does not cover damage from adaptations or adjustments made to the relevant Product without the prior written consent of GSMK. A Guarantee will not apply if the type or serial number of the product has been altered, deleted, removed or rendered illegible.A Guarantee does not cover (among other things):a. periodic maintenance and repair or replacement of parts due to normal wear and tear; consumables supplied with the Product such as batteries;c. cosmetic damage;d. physical damage to liquid crystal displays;e. damage or loss to software, data or storage media;f. transport costs and risks;g. damage from improper use or maintenance;h. damage from installation or use of the Product inconsistent with applicable technical or safety standards or installation or user instructions;’i. damage from improper or incorrect installation of software and other products;j. repair or attempted repair of the Product by non-authorised persons;k. damage from accidents, lightning, water, fire, improper ventilation or any cause beyond the control of GSMK;l. damage by use of the Product with accessories, products or peripheral equipment not made by GSMK;m. damage by defects of any system into which the Product is incorporated;n. software (as mentioned below); ando. damage due to abuse, neglect or commercial use.The Guarantees contain warranties and other vital terms concerning the Products, including limitations and exclusions of guarantee coverage and liability. Please review the Guarantee(s) which apply to the Products carefully. Placing an order for Products with GSMK constitutes full acceptance of the guarantee and warranty terms and limitations set out in these Terms and in any applicable GSMK Guarantees available to view at the time of placing an order. The terms of the Guarantee card shipped with the Product supersedes (to the extent of any inconsistency) Guarantee terms in GSMK websites and other sources. Free-of-charge services under a Guarantee will be provided only on presentation of proof and date of purchase. Therefore, you should keep a copy of the invoice for the Product with the Product Guarantee card. You should also keep a copy of the courier delivery note as evidence of the exact delivery date. Claims to be made within warranty period Notwithstanding any provision of the Guarantees, all warranty claims must be made within the warranty period stipulated in the Guarantee. No other terms or warranties No advice or information, whether oral or written, obtained by you from GSMK, distributors, resellers or other third parties, whether through or from after-sales or other services referred to in, or linked to or from GSMK websites, or otherwise, will create any warranty or condition concerning Product features or capabilities not expressly stated in these Terms or the relevant Guarantee(s). There are no warranties, conditions or other terms that are binding on GSMK other than as stated in these Terms, except for those (if any) provided by your statutory rights under applicable law (whether as a consumer or otherwise) which cannot be waived or limited by contract. There may be differences between Products delivered to you and seemingly equivalent products described in marketing materials (advertisements, catalogues, specification sheets etc) in manufacturers’, distributors’, resellers’ or other websites or other materials, which may or may not be intended for use in your country of residence. GSMK is not responsible for such differences. Any other warranty, condition or other term concerning Products that might otherwise be implied into or incorporated into the Terms by law is expressly excluded (to the fullest extent permitted by applicable law). GSMK employees are not authorized to vary these Terms. If Products (such as certain accessories) are sold without an applicable Guarantee card, GSMK gives no warranty or guarantee, other than as stated in applicable law. Third Party Hardware If hardware which is not manufactured by GSMK is included as or with Products available for purchase from GSMK and a separate third party guarantee for that hardware is included with Products, the terms of that guarantee shall apply to the exclusion of the guarantees and warranties mentioned above (to the fullest extent permitted by applicable law). Software The Guarantee(s) and/or warranties mentioned above do not cover any software products contained in or supplied with the Products (whether produced by GSMK or by other parties). No guarantees or warranties (express or implied) with respect to software sold with or embedded or incorporated into Products are given, save any expressly set out in any accompanying software end-user licence agreement or other terms included with the software. Any such software is provided “AS IS” (i.e. without warranty or conditions as to its satisfactory quality, fitness for purpose or correspondence with description) unless expressly provided in any end-user licence agreement or software or other product warranty from the relevant manufacturer or licensor, enclosed with the relevant Products. Please refer to the end-user licence agreements and/or guarantees included with the Products, for Customer’s rights with regards to the manufacturer or supplier of software, and the parties’ respective obligations with respect to that software. Technical Assistance and Support The Guarantee(s) and warranties do not cover technical assistance for hardware or software use. GSMK does not offer support to customers for problems or issues regarding any software or other products licensed or manufactured by a party other than GSMK. If Customer needs such support, Customer must contact the respective manufacturer or licensor of the relevant software or other product. Modification of Guarantees and warranties GSMK reserve the right to modify warranties (in or referred to in these Terms), and/or separate warranties and guarantees (included with the Products) at any time. However, Contracts accepted on the basis of previous terms and conditions, including Guarantees which applied to your purchase (at the time of purchase) remain unaffected.
19. Liability limitation
These Terms set out the full extent of GSMK’s obligations and liabilities in respect of the supply of, or failure to supply, Products. GSMK is not liable to you (or any other parties): a. for any indirect, incidental, consequential, punitive or exemplary damages, or for loss of income, profits, bargain, revenue, contracts, goodwill, use, enjoyment, time, data, electronically transmitted orders or other economic advantage (even if GSMK has been advised of the possibility of such damages), however caused, through serious fault, Product unavailability or otherwise and regardless of the theory of liability, whether in contract, tort or otherwise (but not to the extent that applicable law prohibits liability exclusions or limitations for intentional torts or gross negligence, or other fault bases), or b. for 1) loss of the use of Products or inability to order Products via a GSMK website or other media, 2) the cost of procuring substitute goods and services resulting from any Products, data, information or services purchased or obtained or messages received or transactions entered into through a GSMK website or other media, 3) unauthorized access to or alteration of your transmission or data, or 4) statements or conduct of any third party regarding any matter relating to content downloaded from an GSMK website or other media. This clause and the limitations of liability apply also to GSMK named as the guarantor or warrantor (if any), in the relevant Guarantee. If applicable law prevents, restricts or limits GSMK’s ability to limit or exclude its liability or its liability in respect of certain kinds of loss, the limitations and exclusions in these Terms shall apply to exclude or limit GSMKÕs liability to the maximum extent permissible. Important Consumer Qualification Nothing in these Terms limits, excludes or affects (and should not be read to limit, exclude or affect) GSMK’s liability which, under the laws which apply to you (which may include consumer protection laws in your usual country of residence) cannot be excluded or limited. Nothing in these Terms affects (or should be read to limit or affect) statutory rights under applicable national laws in force which apply to you. You may assert your rights at your sole discretion.
20. Data Protection and Privacy
Data collection: By submitting orders, you consent to the processing of data personal to you, such as your name and title, address, telephone number, contact details and other personal details (“Personal Data”), in accordance with the terms notified in the “Personal Data” (or similarly entitled) section of the GSMK website order submission form or the telephone call centre ordering process. GSMK will not use and/or process your data for any other purpose.Each party (i.e. you or GSMK) agrees to treat all not publicly available commercial or technical data and documents that may be exchanged as part of the business relationship as confidential. Each party (i.e. you or GSMK) agrees to process data of the other party only for the purpose of the mutual business relationship, to protect it against unauthorized access by third parties, and to not make the data available to third parties without the consent of the other party.
21. Export Control
You acknowledge that Products licensed or sold to you under these Terms may be subject to export control laws and regulations of jurisdictions including but not limited to, the countries of the European Economic Area. You confirm that, should this be the case, you will not export or re-export them in breach of such laws or regulations.
22. Governing Law, Jurisdiction and Languages
The sale of Products and/or Services and these Terms shall be governed by and construed under the laws of Germany, except to the extent or in circumstances where applicable law requires application of the law of your country of residence (or other law). For all disputes, Customers submit to the exclusive jurisdiction of the Courts of Berlin, Germany. However, if you are a consumer, this does not affect your statutory rights.
23. Other General Notices and Communications
Each party (i.e. you or GSMK) may send notices or communications to the other by personal delivery, e-mail, regular mail or fax. Notices or communications must be sent to the latest contact details specified by the receiving party. Notices and communications will be considered received by the addressee (as applicable):(1) If by courier or other mode of personal delivery, on the date of personal delivery to such addressee’s address as last specified by that addressee before despatch; or (2) if by posting, 5 working days after the date of registered posting (by airmail, delivery receipt requested) to the addressee’s address last specified by the addressee before posting; or (3) if by facsimile, contemporaneously with facsimile transmission to the facsimile number last specified by the addressee before transmission, with delivery being evidenced by an appropriate successful transmission contact report. E-mail communications shall be considered received by the addressee on the earlier of (1) the earliest time at which the e-mail is accessible by the addressee; (2) receipt by the sender of a delivery receipt message indicating successful delivery to the intended addressee’s e-mail address, or (3) the expiry of 48 hours from the sending of the e-mail; provided that if at any point the sender receives notification that the e-mail has not been successfully transmitted to an addressee then the e-mail shall not be deemed to have been received by that addressee. Order cancellations by Customers via e-mail shall only be effective upon express acceptance thereof by GSMK. GSMK may at its option accept orders and acknowledge, accept or effect other communications by telephone. Telephone communications by GSMK shall be as effective as written communications. No waiver No omission or delay on the part of any party to insist on strict performance of any Terms, or in exercising any right, power or remedy under these Terms, shall operate as a waiver thereof, nor shall any single or partial exercise by any party of any right, power or remedy preclude the further or other exercise thereof or the exercise of any other right, power or remedy. Without limitation, no waiver by any party of any breach of any provision of these Terms shall be a waiver of any subsequent breach of that or any other Term. Severability If all or any part of one or more of these Terms is or becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation or found to be illegal or unenforceable in whole or in part under any applicable law, or regulation of any jurisdiction or country, or with respect to a certain category of persons, such provision or part shall to that extent, and only if it cannot be interpreted in a manner to avoid the illegality, invalidity or unenforceability (and only in relation to that jurisdiction or country, or category of persons) be deemed not to form part of the Contract. The legality, validity or enforceability of the remainder of these Terms or the remaining parts of the relevant Term shall not in any way be affected or impaired thereby (in relation to such jurisdiction or country, or category of persons). The legality, validity or enforceability of such provision under the applicable laws of any other jurisdiction or country or category of persons, shall not in any way be affected or impaired.
24. Statutory rights
These Terms do not affect (and should not be read to affect) your statutory rights which cannot be waived or limited by contract.