Terms & Conditions
Nonbinding Translation of the Binding German Terms & Conditions
General Terms & Conditions of Business for marketpress.com
Revised: 7 September 2012
1. Definitions, Scope of Application
1.1 The following General Terms & Conditions of Business (“T&C”) apply for use of the Online Shop at “marketpress.de” (“Online Shop”). They also apply to contracts concluded during use of the Online Shop, and to services which are provided in the context by Inpsyde GmbH, Mutzer Heide 3, 51467 Bergisch Gladbach; tel.: +49 (0) 211 – 99545911, fax: +49 (0) 2202 – 932346; email: firstname.lastname@example.org; general manager and authorised representative: Heinz Rohé; registered under no. B65224 in the commercial register kept at Cologne Local Court; VAT number: DE263849534; registered place of business: Bergisch Gladbach (“Inpsyde”).
1.2 In the following T&C, the term “Customer” refers both to users of the Online Shop and of the Marketpress Support Forum, and to buyers of digital products at the Online Shop.
1.3 Any divergent terms of business specified by the Customer shall not apply. Any acknowledgement from the Customer drawing attention to its own terms of business are expressly refuted. The Customer’s terms of business shall not be incorporated in any agreements, unless expressly confirmed by Inpsyde in writing. The German language version of these terms is
2. Inpsyde’s Performance
2.1 Through the Online Shop, Inpsyde sells plugins, themes and other extensions (“Digital Products”) for the “Wordpress” blog system. The specific items for sale and the prices can be gathered from the relevant information provided at the Online Shop in each case. Inpsyde currently offers Customers “Standard”, “Business” and “Developer” packages; further details can be obtained from the Online Shop.
2.2 Following purchase, Digital Products can be downloaded and stored by the Customer in ZIP format. The Customer is responsible for ensuring that its systems fulfil the requirements for downloading and unzipping the ZIP file.
2.4 For the “Standard” and “Business” packages offered by Inpsyde, the term (Item 2.3) is six (6) months. For the “Developer” package, the term is nine (9) months.
2.5 The Customer can renew the term for updates and support services for the respective product up until the end of the agreed term. The relevant prices for this along with further details can be found in the Dashboard (Item 4.1). However, continued use of the respective product does not depend on the term being renewed.
2.6 The Customer is entitled to obtain updates and support services for two (2) installations with the “Standard” package, for ten (10) installations with the “Business” package, and for an unlimited number of installations with the “Developer” package.
3. Technical Requirements for Using Digital Products
3.1 In order to be able to use and store the Digital Products, the Customer needs ordinary Internet access and must have the “Wordpress” software.
3.2 The Customer has to ensure that the “Wordpress” software is properly installed on a hosting server and must be able to access the system at any time, e.g. via FTP or comparable. This is prerequisite for being able to use the Digital Products. Providing “Wordpress”, installing the programme, and operating and hosting the software are not included in the services owed by Inpsyde.
3.3 Unless otherwise specified, the latest version of the “Wordpress” software is required for using the Digital Products. The Customer is responsible for ensuring that this requirement is met.
4. Using the Online Shop and the Dashboard
4.1 Customers wanting to place orders at the Online Shop must register to use the Online Shop, i.e. open a user account. A user account is automatically created when the first purchase is made at the Online Shop. Once a Customer has already bought one product, further products can be bought using the user account already existing. The Customer can access its profile through the user account, which also provides an overview of the products the Customer uses (“Dashboard”).
4.2 Making purchases is generally contingent upon the Customer being of age and having full legal capacity.
4.3 The data required during registration must be given correctly. In the event of any changes, the Customer is under obligation to also update its data in the Online Shop without delay.
4.4 When the Customer fills in and sends off an order form, this constitutes an offer by the Customer to conclude an agreement on accessing and using the Online Shop. Inpsyde accepts this offer by sending the Customer login credentials for the Online Shop, thus bringing about an agreement on use of the Online Shop. With these login credentials, the Customer can log in to the Online Shop, where it can also access its personal user account including the Dashboard (Item 4.1).
5. Login Credentials
5.1 The login credentials (user name and password) are for exclusive use by the Customer in person. The Customer may not pass the credentials on to third parties or otherwise disclose it. If the Customer becomes aware or even only suspects that its credentials are being misused, it must report this to Inpsyde without delay. If it is responsible for misuse of its login credentials, the Customer shall be liable for all and any consequences of third-party use. This may also mean that payment has to be made for orders that have been placed without authorisation. The Customer’s liability shall only lapse once it has informed Inpsyde about the unauthorised usage or the loss of its login credentials and has changed them if necessary.
5.2 In the event of any breach of these T&C, in particular
- if wrong information is provided on registration, and/or
- if the login credentials – in particular the password – are disclosed without permission,
Inpsyde shall be entitled to temporarily or permanently block the Customer’s account, and/or definitively refuse the Customer access with immediate effect, and/or terminate the agreement on use without notice. After any such instance, the Customer may not re-register to use the Online Shop without express prior consent from Inpsyde.
6. Purchasing Digital Products
6.1 The Customer can order Digital Products by clicking on the shopping cart button for the respective item and completing the subsequent order process.
6.2 When the Customer clicks on the button marked “Buy”, it makes an offer to conclude the relevant purchase contract. Inpsyde accepts this offer by sending confirmation of order including an invoice by email, thus bringing about the contract. However, Inpsyde is under no obligation to accept the Customer’s offer. Mere confirmation of receipt of an order by Inpsyde does not constitute a binding confirmation of that order.
7. Delivery of Digital Products
The Digital Products are delivered by being posted in a ZIP file (Item 2.2) on the Customer’s Dashboard (Item 4.1) for downloading at any time.
8. Prices, Terms of Payment
8.1 The price for each item on sale is shown in the presentation of the respective item.
8.2 All the prices quoted at the Online Shop include German statutory turnover tax at the rate in force at the time.
8.3 Unless otherwise agreed, payment for purchasing a Digital Product has to be made in advance and falls due immediately after the order has been placed.
8.4 Inpsyde may offer various means of payment (e.g. credit card, PayPal), but without being under any obligation to do so. Inpsyde is entitled to avail itself of third-party services for the purpose of handling payments and collecting receivables. For payments handled via payment system providers (e.g. PayPal), the terms of business and conditions of use laid down by the respective payment system provider apply; moreover, the Customer may need to have a user account with the provider.
8.5 For the service ordered, the Customer receives an invoice which is sent as a PDF file to the email address the Customer has specified. In addition, the Customer can at any time view and download its invoices whilst logged in to the Online Shop.
8.6 If the Customer fails to honour its payment obligations or reverses payments made, or if a chargeback is effected for any amounts already paid, Inpsyde – at the same time reserving further rights – shall be entitled to block the Customer’s access to the Online Shop. If this is done owing to outstanding receivables and if the Customer balances such receivables, access to the Online Shop shall be re-activated.
9.1 Inpsyde shall be liable in accordance with statutory regulations for any loss or damage to the Customer which is caused with intent or by gross negligence; ensues from lack of a warranted characteristic in the object of performance; arises from a culpable breach of cardinal duty; or results from mortal injury, physical harm or health damage if due to Inpsyde’s fault. Inpsyde shall also be liable in accordance with the German Product Liability Act (“Produkthaftungsgesetz”).
9.2 Cardinal duties shall mean those contractual obligations which have to be fulfilled in order for the agreement to be executed in the first place; which the contractual partner may rely on being performed as a matter of course; and which if breached by the other party may jeopardise the very purpose of the contract.
9.3 If a cardinal duty is breached, liability – provided the damage is merely caused by slight negligence, and does not involve mortal injury, physical harm or health damage – shall be limited to those losses which are typical and foreseeable and must therefore be anticipated in connection with the provision of services such as those under the contractual agreement.
9.4 In all other respects, Inpsyde’s liability – for whatsoever legal cause – shall be excluded.
9.5 If the damage suffered by the Customer is due to loss of data, Inpsyde shall not be held liable insofar as the damage would have been avoided, had the Customer made a full backup of all the valuable data at appropriate regular intervals.
9.6 The Customer shall be personally responsible for lawful use of the Digital Products it purchases. In particular, the Customer must ensure compliance during use of the Digital Products with any obligations to furnish information and with all other statutory regulations.
10. Closure of the Online Shop Account
10.1 Both parties can terminate the agreement on using the Online Shop by giving notice at any time. The Customer can give notice whilst logged in to the Online Shop by clicking on the link provided for the purpose on the Dashboard. The Customer can also terminate the agreement on use by giving notice by email or in a written letter sent by fax or post; the contact details are provided on the Marketpress website for reference at any time. During the term of an update and support period to which the Customer has subscribed, Inpsyde may only terminate the agreement on using the Online Shop by giving routine notice effective as from the end of such term.
10.2 Following termination of the agreement on use, the Customer no longer has any access to the Online Shop; thus it can no longer access Digital Products which have been ordered but not yet downloaded. The Customer also loses any further entitlement to update and support services from Inpsyde.
10.3 Both parties reserve the right to extraordinarily terminate the agreement on use for important cause in accordance with statutory regulations.
11. Rules on Using the Support Forum
11.1 On purchasing a Digital Product, the Customer simultaneously acquires the right to contribute in writing to the relevant section of the Marketpress Support Forum (cf. Item 2.3). This Forum can be entered using the login credentials provided on registering for the Online Shop. Subject to any separate agreements, the following provisions apply to use of the Support Forum:
11.2 The Customer is bound not to breach applicable statutory regulations. In particular, any content published by the Customer in the Marketpress Support Forum must not infringe any third-party rights (e.g. rights pertaining to copyrights, patents, trademarks and utility models, but also droit moral). The Customer must comply with provisions laid down in penal law, in legislation on the protection of young people, and in competition law. Moreover, no content which contains advertising may be published in the Forum or sent to other forum users.
11.3 The Customer is also under obligation to refrain from harassing other forum users; in particular stalking, i.e. deliberately and repeatedly (persistently) pursuing or harassing other customers, is prohibited.
11.4 In order to protect its own data and that of other parties, the Customer is under obligation to heed recognised principles of data safety and to comply with relevant data protection regulations.
11.5 The Customer acknowledges that Inpsyde does not check user content in advance and is under no obligation to do so. Nonetheless, in the event of any breach of these T&C or of statutory regulations, Inpsyde shall be entitled to cease publishing the content posted by the Customer and to alter, move or delete it.
11.6 The Customer is under obligation to release and discharge Inpsyde and its managerial agents and employees from any liability and compensate costs – including lawyer’s fees for defence purposes and litigation costs – if any action is brought against Inpsyde or its managerial agents or employees due to a culpable violation by the Customer of the provisions laid down in Items 11.2 – 11.5 above. In any such case, Inpsyde shall inform the Customer about the action brought without delay, and to every possible and reasonable extent it shall give the customer an opportunity to ward off the claim being asserted. The Customer shall be under obligation to furnish Inpsyde with all the information at its disposal about the matter concerned without delay. Any claims to which Inpsyde may be entitled beyond this shall remain unaffected.
11.7 Inpsyde shall be entitled to extraordinarily terminatethe agreement on use in the event of any violation of Items 11.2 – 11.5 above.
12. Written Contract
Under these T&C, Inpsyde makes no provision for issuing separate written contracts. Inpsyde does not therefore store the wording of the contractual agreement specifically reached with the Customer. However, the Customer can view the orders it has placed whilst logged in to the Online Shop.
13. Data Protection
14. Final Provisions
14.1 If the Customer is a merchant, a public corporation or an agency entrusted with managing public assets, Bergisch Gladbach shall be place of jurisdiction for any legal disputes ensuing either directly or indirectly from the contractual relationship between Inpsyde and the Customer. In this same case, it is agreed that Bergisch Gladbach shall also be place of performance.
14.2 The same shall apply if subsequent to contract closure the Customer’s place of residence or normal place of abode is not on sovereign German territory, or if the Customer relocates to some place outside sovereign German territory. This shall also apply if the Customer’s place of residence or normal place of abode is not known at the time when action is brought.
14.3 German law shall apply exclusively, excluding CISG.
14.4 If any provision of these T&C is inoperative, this shall not affect the validity of the remaining provisions. The inoperative provision shall be substituted by the relevant regulations laid down by law.