Nonbinding Translation of the Binding German Terms & Conditions
Terms & Conditions
Nonbinding Translation of the Binding German Terms & Conditions
General Terms & Conditions of Business
Revised: 01 March 2016
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.com” (“Online Shop”). They also apply to contracts concluded during use of the Online Shop, and to services which are provided in the context by MarketPress GmbH, Karcherallee 13, 01277 Dresden, Germany, Phone: +49 (0) 351 – 21295240, email: firstname.lastname@example.org; general manager and authorised representative: Nick Jantschke; registered under no. HRB 35339 in the commercial register kept at Dresden Local Court; VAT number: DE305635672; registered place of business: Dresden (“MarketPress”).
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 MarketPress in writing. The German language version of these terms is
2. MarketPress’s Performance
2.1 Through its Online Shop, MarketPress has a range of plugins, themes and other add-ons for sale (jointly referred to hereinafter as “Digital Products”) for the “WordPress” blog system. The specific items on offer and the respective prices can be gathered from the relevant information provided at the Online Shop. Plugins are currently offered to MarketPress’s customers in the “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 MarketPress’s “Standard”, “Business” and “Developer” packages on offer, the term (Item 2.3) is twelve (12) months respectively. For products other than plugins, such as e.g. themes, separate terms apply as specified in the respective product details in the Online Shop.
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 the following number of installations of the product: “Standard” package: one (1) installation; “Business” package: five (5) installations; and “Developer” package: ten (10) installations. For products not offered in connection with these packages, special terms apply as indicated in the product details on the respective page at the Online Shop.
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 MarketPress.
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. MarketPress 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 MarketPress 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 MarketPress 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,
MarketPress 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 MarketPress.
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. At the end of the order process, the Customer can re-check the order details and correct any errors, before making an offer to conclude a purchase contract (see Item 6.2 sentence 1).
6.2 When the Customer clicks on the button marked “Buy”, it makes an offer to conclude a purchase contract. MarketPress accepts this offer by sending confirmation of order by email; this brings about the contract. However, MarketPress is under no obligation to accept the Customer’s offer to conclude a contract. Mere confirmation from MarketPress that an order has been received does not constitute a binding confirmation of that order.
6.3 The languages currently available for contract closure are German and English.
7. Delivery of Digital Products
7.1 The Digital Products are delivered in a ZIP file.
7.2 Together with its acceptance of the offer to conclude a contract, MarketPress therefore sends the Customer a link in the confirmation of order, enabling the Customer to download the respective file. The Customer can re-use this link any number of times whenever it is logged in to the Online Shop.
8. Right of withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right of withdrawal, you must inform us (MarketPress GmbH, Karcherallee 13, 01277 Dresden, Germany, Phone: +49 (0) 351 – 21295240, Email: email@example.com) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or e-mail). You may use the attached model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
9. Model withdrawal form
Model withdrawal form
To MarketPress GmbH, Karcherallee 13, 01277 Dresden, Germany, Phone: +49 (0) 351 – 21295240, Email: firstname.lastname@example.org:
I/We (1) hereby give notice that I/We (1) withdraw from my/our (1) contract of sale of the following goods (1)/for the provision of the following service (1),
Ordered on (1)/received on (1),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
(1) Delete as appropriate.
10. Prices, Terms of Payment
10.1 The price for each item on sale is shown in the presentation of the respective item.
10.2 All the prices quoted at the Online Shop include German statutory turnover tax at the rate in force at the time.
10.3 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.
10.4 MarketPress may offer various means of payment (e.g. credit card, PayPal), but without being under any obligation to do so. MarketPress 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.
10.5 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.
10.6 If the Customer fails to honour its payment obligations or reverses payments made, or if a chargeback is effected for any amounts already paid, MarketPress – 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.
When you buy Digital Products at our Online Shop, you conclude a purchase contract with us. You are therefore entitled to the statutory guarantee rights laid down in German Civil Code § 437.
12.1 MarketPress 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 MarketPress’s fault. MarketPress shall also be liable in accordance with the German Product Liability Act (“Produkthaftungsgesetz”).
12.2 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.
12.3 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.
12.4 In all other respects, MarketPress’s liability – for whatsoever legal cause – shall be excluded.
12.5 If the damage suffered by the Customer is due to loss of data, MarketPress 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.
12.6 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.
13. Closure of the Online Shop Account
13.1 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 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, MarketPress may only terminate the agreement on using the Online Shop by giving routine notice effective as from the end of such term.
13.2 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 MarketPress.
13.3 Both parties reserve the right to extraordinarily terminate the agreement on use for important cause in accordance with statutory regulations.
14. Rules on Using the Support Forum
14.1 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:
14.2 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.
14.3 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.
14.4 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.
14.5 The Customer acknowledges that MarketPress 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, MarketPress shall be entitled to cease publishing the content posted by the Customer and to alter, move or delete it.
14.6 The Customer is under obligation to release and discharge MarketPress 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 MarketPress 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, MarketPress 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 MarketPress with all the information at its disposal about the matter concerned without delay. Any claims to which MarketPress may be entitled beyond this shall remain unaffected.
14.7 MarketPress shall be entitled to extraordinarily terminatethe agreement on use in the event of any violation of Items 11.2 – 11.5 above.
15. Text of the Contract
After an order has been placed, MarketPress sends the Customer an overview stating the product(s) it has ordered together with the respective item price and the total price, and enclosing these Terms & Conditions. Apart from this, MarketPress does not store the text of the contract separately for each named customer. However, when logged in to the Online Shop, the Customer can call up the details of any orders it has placed.
16. Data Protection
17. Google Analytics
18. Final Provisions
18.1 If the Customer is a merchant, a public corporation or an agency entrusted with managing public assets, Dresden shall be place of jurisdiction for any legal disputes ensuing either directly or indirectly from the contractual relationship between MarketPress and the Customer. In this same case, it is agreed that Dresden shall also be place of performance.
18.2 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.
18.3 German law shall apply exclusively, excluding CISG.
18.4 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.