§ 1 General

(1) The following terms and conditions of sale and delivery apply exclusively to all deliveries and other services; they only apply to entrepreneurs within the meaning of Section 310 (1) in conjunction with Section 14 of the Civil Code.

(2) For the purposes of these GTC, the term “customer” refers to the users of the online shop as well as, the purchasers of digital products in the online shop and the clients of services.

(3) Terms and conditions of the customer that deviate from these terms and conditions do not apply. Counter-confirmations by the customer with reference to their own terms and conditions are expressly rejected. The customer’s terms and conditions do not become part of agreements unless they are expressly confirmed in writing by Kybernetik Services GmbH.

(4) The inclusion and interpretation of these terms and conditions of sale and delivery, as well as the conclusion and interpretation of legal transactions with the buyer himself, are governed exclusively by the law of the Federal Republic of Germany. The application of the uniform law on the formation of contracts for movable international sale of goods, the uniform law on movable international sale of goods of the UN-Sales-Convention are excluded.

(5) The invalidity of individual provisions of this contract or its components does not affect the effectiveness of the remaining provisions. The contractual partners are obliged to replace an invalid provision with an effective provision that is equivalent to its economic success, provided that this does not result in any significant change in the content of the contract; the same applies if a situation that requires regulation is not expressly regulated.

(6) The place of performance for all obligations arising directly or indirectly from this contractual relationship, including the obligation to pay, is the registered office of the seller.

(7) The place of jurisdiction for disputes arising from contractual relationships is Berlin as the registered office of the seller. This only applies if the customer is a merchant, a legal entity under public law or a special fund under public law.

§ 2 Offers, Scope Of Services And Conclusion Of Contract

(1) Contract offers of the seller are subject to change.

(2) The seller’s order confirmation shall be exclusively authoritative for the scope of the contractually owed performance.

(3) The seller reserves the right to place orders for the delivery of goods to third-party companies, which can choose to deliver and invoice the customer on their own account. The legal transaction is transferred tacitly and with the express consent of the customer to the conditions of the seller.

(4) The seller reserves the right to make changes to details of the design, specification and implementation even after sending an order confirmation, provided that these changes do not contradict either the order confirmation or the buyer’s specification. The buyer will furthermore agree to any proposed changes by the seller going beyond this, insofar as these are reasonable for the buyer.

(5) Partial deliveries are permitted.

(6) The documents on which the offer or the order confirmation is based, such as illustrations, drawings, dimensions and weights, are generally only to be understood as approximate values, unless they are expressly designated as binding.

(7) A performance specification preceding the offer and order with specification for implementation is binding for both parties. Implementation details for individual or entire projects (sections) that are not defined more precisely in the specifications are at the discretion of the seller as long as the basic function or the basic goal is implemented/achieved. Subsequent definitions that take place after the implementation and mean additional work may be invoiced separately by the seller.

§ 3 Online-Shop, Digital Products

(1) The seller offers plugins, themes and other extensions (hereinafter: “digital products”) for the WordPress blog system for sale via its online shop. The individual purchase items and prices result from the information that can be viewed in the online shop. Further details can be found in the online shop.

(2) The digital products can be downloaded and saved by the customer after purchase.

(3) With the purchase of a digital product, the seller is not obliged to offer updates and support services for the respective digital product for a specific number of installations. For more details, please refer to the information in the online shop.

(4) The term and number of permitted copies depends on the packages purchased. The shop user can find more details in the respective product description in the online shop.

(5) For digital products, for which a so-called license key, also: activation key, is given to the customer, the customer receives free updates of the digital product for the term of the respective package, from the date of purchase.

3.1 Technical Requirements For Using Digital Products

(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.

(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 and deinstalling the programme, and operating and hosting the software are not included in the seller’s services.

(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.

3.2 Use Of The Online Shop

(1) Customers wanting to place orders at the online shop must tell personal data about himself. These are his/her full name, address, e-mail address and the confirmation having read the Terms of Use and withdrawal policy.

(2) Making purchases is generally contingent upon the customer being of age and having full legal capacity.

(3) The data required during registration must be given correctly. The customer may not provide any data from third parties. In the event of any changes, the customer is under obligation to also update its data in the online shop without delay.

(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. The customer then receives an activation link, which he must call up within two days of receipt. After calling up the activation link, the customer receives a confirmation e-mail with his personal access data. This confirmation e-mail embodies the acceptance of the offer by the seller. The user agreement with regard to the online shop has thus come into effect.

(5) The seller is entitled to reject individual registrations for the online shop without giving reasons.

(6) Purely informative pages are basically accessible to everyone at any time. Registration is not required for this.

3.3 Access Data

(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 the seller 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 the seller about the unauthorised usage or the loss of its login credentials and has changed them if necessary.

(2) The seller is entitled to use the customer’s access data in the event of violations of these terms of use and business, in particular due to

• false information provided during registration and/or
• unauthorized disclosure of access data, in particular the password.

The seller 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 of the seller.

3.4 Purchase Of Digital Products

(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. The seller saves the purchase contract in conformance to german laws.

(2) When the customer clicks on the button marked “Purchase”, it makes an offer to conclude a purchase contract. The seller accepts this offer by sending the licence keys for the purchased product by e-mail; this brings about the contract. However, the seller is under no obligation to accept the customer’s offer to conclude a contract. Mere confirmation from the seller that an order has been received does not constitute a binding confirmation of that order.

(3) The languages currently available for contract closure are German and English.

3.5 Delivery Of Digital Products

(1) The digital products are delivered in a ZIP file

(2) Together with its acceptance of the offer to conclude a contract, the seller 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.

3.6 Contract Text

After an order has been placed, the seller 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 General Terms and Conditions. Apart from this, the seller 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.

§4 Terms Of Software Use (Software Licence)

(1) On purchasing the digital product, the customer simultaneously acquires the right to use it for an unlimited time, unlimited repeats and install it on as many servers as desired. The unlimited right does not include the purchased license. The license is valid only for WordPress site where the license key was saved and activated. The licence can activate functions that are not available without it. It also activates automatic notifications in the WordPress administration area about updates to the digital product. The purchased license is valid only for the by the customer during purchase selected number of sites. A “WordPress site” is an instance of an WordPress installation without the possible sub sites. Each sub site is counted as a single site.

(2) The customer acquires the right to change the digital product. Changed digital products are excluded from any guarantee, warranty and liability from the beginning of the changes on.

(3) The customer must not give away and sell the digital product to third parties without agreement of the digital product author. There is only one exception: The customer is allowed to use and bring into account the digital product in the context of third parties orders.

(4) On purchasing the digital product, the customer does not acquire the right to free provision of future further developments of the product (so-called upgrades) and also not the right to free support for the installation and use of the product. Excluded from the exclusion are gross, negligent defects of the product. For more details, see § 11.

(5) Any liability for damage caused by the use of the digital product is excluded. For more details see § 13.

§ 5 Prices And Terms OF Payment

(1) The prices are ex works, unless otherwise stated, excluding packaging and other shipping and transport charges. Any packaging shall be charged at cost price and shall only be taken back if the seller is obliged to do so by virtue of mandatory statutory provisions.

(2) If there are more than 4 months between the conclusion of the contract and delivery, without the seller being responsible for a delay in delivery, the seller may increase the price appropriately, taking into account any material, wage and other ancillary costs incurred, which are to be borne by the seller. If the purchase price increases by more than 40%, the buyer is entitled to withdraw from the contract.

(3) If the seller takes into account the buyer’s requests for changes, the buyer shall be charged for the additional costs incurred as a result.

(4) In the event that the payment deadline is culpably exceeded, interest shall be charged at a rate of 8% above the applicable base rate, subject to the assertion of further claims.

§ 6 Offsetting And Retention

Offsetting and retention are excluded unless the offsetting claim is undisputed or has been legally established.

§ 7 Delivery Period

(1) The specification of a delivery date shall be made according to the best judgement and shall be extended appropriately if the buyer for his part delays or omits necessary or agreed acts of cooperation. The same shall apply in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, as well as in the event of the occurrence of unforeseen obstacles which are beyond the seller’s control, e.g. delayed delivery by a sub-supplier, traffic and operational disruptions, shortage of materials or energy, etc. The delivery period shall be extended accordingly. Changes to the delivered goods initiated by the buyer shall also lead to a reasonable extension of the delivery period.

(2) In the event of a delay in delivery for which the seller is responsible, the buyer shall set a reasonable grace period for delivery.

(3) The seller undertakes to be available at the time of the agreed acceptance of delivery.

§ 8 Transfer Of Risk

The risk shall pass to the buyer as soon as the seller has placed the goods at the buyer’s disposal and has notified the buyer thereof.

§ 9 Right Of Withdrawal

See Right of withdrawal.

§10 Refund Policy

See Refund Policy.

§ 11 Reservation Of Ownership

(1) The seller retains ownership of the delivered goods until full payment. The retention of title also applies until all future and conditional claims arising from the business relationship between buyer and seller have been met.

(2) The buyer is not authorized to assign the goods as security or to pledge them, but is entitled to resell the reserved goods in the ordinary course of business. He hereby assigns the claims arising from his business partners to the seller.

(3) If the goods are treated or processed by the buyer, the retention of title also extends to the entire new item. The buyer acquires co-ownership to the fraction corresponding to the ratio of the value of his goods to that of the goods delivered by the seller.

(4) The buyer only receives the right to the product/result of products that are created through intellectual performance, not to the means used to produce the result.

(5) When implementing software, the buyer receives an encrypted (compiled) program code that can run on the target system, and, if necessary, can only be run by means of a runtime library that is additionally supplied and must be installed.

(6) A claim to the source code of software or other intellectual implementations only exists at the moment when the seller completely excludes further development and this means an unreasonable new investment for the new development for the buyer.

(7) If the value of all securities existing for the seller exceeds the existing claims by more than 10%, the seller will release securities of the seller’s choice at the request of the buyer.

(8) The seller is entitled to assert the retention of title rights without withdrawing from the contract.

§ 12 Guarantee

By purchasing products in the online shop, a purchase contract is concluded between the buyer and the seller. The buyer is thus entitled to the statutory warranty rights from § 437 BGB.

§ 13 Warranty Claims

(1) If the purchase is a commercial transaction for both parties, the buyer shall inspect the goods immediately upon receipt, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notify the seller immediately. If the buyer fails to give such notice, the goods shall be deemed to have been accepted, unless the defect was not recognisable during the inspection. n all other respects, §§ 377 ff. HGB shall apply.

(2) In the case of work contracts, the buyer must accept the goods and document the acceptance. Defects in the function of the item that become apparent later will be remedied free of charge.

(3) Claims for defects are limited to supplementary performance. If the subsequent performance fails, the buyer has the right to demand a reduction in payment or, in the case of commercial transactions, cancellation of the contract.

(3) Further claims of the buyer, insofar as these do not result from the assumption of a guarantee, are excluded. This shall not apply in the event of intent, gross negligence or breach of essential contractual obligations on the part of the seller.

(4) Claims for defects expire one year after delivery of the purchased item.

§ 14 Liability

Claims for damages by the buyer are excluded. This does not apply in the case of intent, gross negligence, breach of essential contractual obligations by the seller or the assumption of a guarantee.

§ 15 Final Provisions

15.1 Subject To Modification

(1) During the contract period laws can change, new judgements can be adjudicated, the digital products changed or entrepeneurial descisions and therefore require to adjust the GTC. In addition insignificant changes of GTC can be made for a better understanding of the contract contents. In these cases, the seller reserves the right to change the terms and conditions unilaterally.

(2) The seller informs the customer about forthcoming changes to the GTC and grants him a period of 30 days from the dispatch of the information so that the customer can agree to the changes or reject them. In the event of rejection, the terms and conditions agreed upon when the contract was concluded shall apply. In the event of rejection, the seller reserves the right to terminate the contractual relationship. If the customer does not react within the period allowed, the new terms and conditions are deemed to have been tacitly accepted and replace the terms and conditions agreed upon when the contract was concluded.

15.2 Alternative Dispute Resolution In Online Procedure

Kybernetik Services GmbH strives to resolve differences of opinion that arise from the contractual relationship with consumers out of court. If both parties fail to reach an agreement, Kybernetik Services GmbH agrees to participate in an out-of-court arbitration procedure in accordance with Art. 14 Para. 1 ODR-VO and Section 36 of the Consumer Dispute Settlement Act (VSBG). The European Commission provides the “Online Dispute Resolution” (ODR) platform for dispute resolution. Consumers have the opportunity to use this platform for the settlement of disputes. It can be found at ec.europa.eu/consumers/odr/. In this context, consumers can contact the competent and state-approved arbitration board in Germany: Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e.V. , Straßburger Straße 8 77694 Kehl am Rhein www.verbraucher-schlichter.de

Status September 2022