General Terms and Conditions
The General Terms and Conditions (also referred to as the GTCs) shall hereinafter apply to offers of "Themes for end customers" and to the individual creation of online shop designs, between:
20355 Hamburg, Germany
(hereinafter referred to as the "Supplier")
the End Customer
(hereinafter referred to as the "Customer/Client")
§ 1 Purpose of the Contract
The Supplier develops and markets software for operating online shops. The Supplier provides a variety of different themes or templates via its Theme Store for download upon payment of a package rate.
When buying a theme, the Customer/Client selects the desired theme from the online catalogue on the Supplier's website by clicking on the "Buy now" button.
Where the Customer/Client commissions the creation of an individual online shop design, the Supplier will adapt the software under a standard services catalogue (Annex 1) according to the scope of services selected by the Client/Customer. If the Client/Customer wishes, the Supplier can, for a fee, provide introductory guidance on the operation and use of the existing/adapted/configured software, and where applicable, provide further consultancy.
§ 2 Conclusion of the contract
Where the Client/Customer places an order online, by email, telephone fax or other means of communication, it provides an offer within the meaning of §§ 145 ff German Civil Code to conclude a contract with the Supplier. The Client/Customer receives a confirmation of receipt of order by email ("confirmation of receipt of order"). The said confirmation of receipt of order does not constitute acceptance of the offer, but rather only informs the Client/Customer that the order has been received by the Supplier.
Where the Customer/Client commissions the creation of an individual shop design, the contract with the Supplier takes effect upon the Supplier's acceptance of the Customer's offer, when it receives the fully-completed order form signed by the Client/Customer. This will be confirmed to the Client/Customer in a second email from the Supplier ("confirmation of acceptance").
§ 3 Scope of services / Rights of use
Where the Client/Customer purchases a theme, the latter obtains, subject to the condition precedent of full payment of the purchase price, a simple, non-exclusive, temporally unrestricted right to use the design for the Client's/Customer's online shop within the scope of the following provisions. The Client/Customer is entitled to make a copy of the themes acquired for data backup. The Client/Customer is prohibited from making further copies of the said themes and from allowing such copies to be made.
Where the Customer/Client commissions the creation of an individual shop design, the services owed by the Supplier in the individual instance are indicated as those services selected, commissioned and confirmed by the Supplier by email ("confirmation of acceptance").
The Client/Customer bears responsibility for installing/activating the website on the Web and for ensuring accessibility of the website on the Web. The Supplier is not obliged to provide storage space for the website (hosting) nor to create a web domain. Providing access to the Web ("access providing") also does not fall within the remit of services to be provided by the Supplier.
§ 4 Obligations of the Client/Customer
The Supplier cannot be expected to have industry-specific knowledge or to provide legal advice. In particular, the Supplier is not obliged, by means of studies, surveys or other market research, to obtain specific knowledge in relation to the habits and usage patterns of people who are among the shop's target group.
Insofar as the Supplier undertakes creating the shop design, the provisions of Clauses 5 to 8 also apply.
§ 5 Designphases
Adaptation of the Customer's website by the Suppler requires collaboration between both parties in accordance with the following specifications.
On the basis of the Customer's instructions with regard to the scope and functions of the website, taking into consideration the target groups of the website, the Supplier provides the Customer with a basic version of the website ("draft"). The Customer must specify the structure of the website, all significant artistic features and the basic functions required. The functional capability of hyperlinks that link individual websites, and implementation of website layout belong, inparticular, to basic functions required.
The Supplier is not liable for the integration of email contact forms, advertising banners and animations.
The Supplier undertakes to develop several alternative proposals for the graphic design of the online shop within the scope of the instructions provided in accordance with Annex 1.
On the basis of the basic version of the online shop agreed by the Customer, the Supplier prepares the shop in usable form.
§ 6 Customer's duty to collaborate
The Customer shall provide the Supplier with the contents to be integrated into the online shop. The Customer bears sole responsibility for the creation of the contents. The Supplier is not obliged to check whether the content provided to it by the Customer is suitable for the objectives of the online shop. The Supplier is only obliged to notify the Customer of errors in the contents in the event of manifest errors.
Text, images and other graphics to be integrated into the website belong, in particular, to the content to be provided to the Supplier. Images and other graphics must be provided to the Supplier in JPEG format with a size not greater than 400KB per image; text should be provided in ANSI, Doc or txt format.
§ 7 Acceptance and further duties to collaborate
As soon as the Supplier has created a basic version of the online shop, which meets the contractual requirements (§ 3(1) of the present Agreement), the Customer will accept the basic version by means of a written declaration (§ 126 b German Civil Code).
As soon as the Supplier has prepared the online shop, which meets the contractual requirements (§ 5(5) of the presentAgreement), the Customer will accept the online shop prepared by means of a written declaration (§ 126 b German Civil Code).
Insofar as the Supplier makes available to the Customer proposals, drafts, test versions or similar, the Customer will check these quickly and with due care, within the scope of what is reasonable. Objections and requests for modifications must be communicated by the Customer to the Supplier without delay.
In the event of any breach by the Customer of its duty to collaborate pursuant to §§ 6 and 7 of the present Agreement, the Supplier is entitled to exercise a right of retention against the Customer and the Supplier's right to remuneration remains unaffected thereby (§ 9(2)(2) inconjunction with § 8(2)).
§ 8 Requests for modifications
The Supplier is not obliged to comply with requests for modifications and additions, which relate to services that have already been approved or (in the event of a consultancy for a limited time) provided. This shall also apply when the requirements for acceptance pursuant to § 7 (1)-(2) of the present Agreement are met, but the Customer did not provide its acceptance.
§ 9 Remuneration, payment
Where a theme is purchased, the price for the theme purchased by the Client/Customer is the corresponding price quoted on the Supplier's website or the price quoted in the Customer's basket. Unless otherwise agreed, all the Supplier's invoices are due immediately and without deduction and are to be paid by the Customer.
Where the Customer commissions the creation of an individual shop design, the Customer undertakes to pay the Supplier the remuneration accounted for each service commissioned in the individual case. Remuneration becomes due upon issue of invoice, in principle, upon confirmation of acceptance (§ 2(2)).
Where the Supplier, instead of being responsible for configuring and adapting software, is only responsible for sending documentation and providing telephone consultancy, the invoiced amount will be due upon confirmation of acceptance (§ 2(2)).
§ 10 Support services
The Client/Customer has no general claim to free support services from the Supplier on the basis of purchase of a theme or on the basis of commissioning the Supplier to create an individual online shop design. A separate Support Agreement needs to be concluded for the Supplier to be obliged to provide a support service.
§ 11 Right to cancel
For all products offered by the Supplier on its website for digital download and for all service provision offered by the Supplier, the right to cancel is excluded.
§ 12 Warranty and liability
The Supplier is liable for defects in themes purchased by the Client/Customer and for defects in the online shop design commissioned by the Client/Customer in accordance with the statutory provisions of the law governing contracts of sale (§ 434 ff. German Civil Code).
The Supplier bears no liability for content that the Customer prepares. In particular, the Supplier is not obliged to check such content for potential violations of the law.
Where third parties bring a claim against the Supplier due to legal violations, which result from the content of the online shop, the Customer undertakes to indemnify the Supplier against any liability and to pay any costs that the Supplier incurs due to the potential legal violations.
In the event of minor negligence, the Supplier is liable only in the event of violation of fundamental contractual duties (cardinal duties) as for personal injuries and pursuant to the German Product Liability Law. In addition, the Supplier's pre-contractual, contractual and extra-contractual liability is limited to wilful intent and gross negligence, whereby the limitation on liability also applies in the event of culpability of an agent of the Supplier.
The limitation period for claims of the Customer for defects including contractual damages claims is one year.
§ 13 Concluding provisions, place of jurisdiction, applicable law
The present agreement between the Client/Customer and the Supplier is governed exclusively by German law to the exclusion of UN Sales Law.
All agreements which amend, supplement or implement the present contractual provisions and any special guarantees and arrangements, shall be made in writing in accordance with § 126 b German Civil Code.
Where individual provisions of the present agreement are invalid or lose validity due to circumstances arising at a later date, the validity of the remaining provisions shall be unaffected thereby. The invalid contractual provision shall be replaced by a provision, which comes closest to the intention of the Contracting Parties, had they considered this point. The same shall apply for omissions.