General Terms And Conditions
General Terms and Conditions and Customer Information
I. General Terms and Conditions
§ 1 Basic provisions
(1) The following terms and conditions apply to all contracts that you conclude with us as a provider (Serverhero GmbH) via the Internet site www.serverhero.de. Unless otherwise agreed, the inclusion of any own terms used by you will be contradicted.
(2) Consumer in the sense of the following regulations is every natural person who concludes a legal transaction for purposes which can be attributed predominantly neither to his commercial nor his self-employed professional activity. Entrepreneur is any natural or legal person or a partnership with legal capacity, which acts in the exercise of its independent professional or commercial activity when concluding a legal transaction.
§ 2 Conclusion of the contract
(1) The object of the contract is the sale of goods.
We sell the goods in part or exclusively as a commission agent in our own name on behalf of third parties, i.e. for a third party as the owner of the goods. Contractual partners with all rights and obligations shall be us irrespective of this.
(2)The presentation of the products in the online shop is not a legally binding offer, but a non-binding online catalogue. You may initially place our products in the shopping basket without obligation and correct your entries at any time before submitting your binding order by using the correction aids provided and explained in the order process. By clicking on the order button, you place a binding order for the goods contained in the shopping basket. The confirmation of the receipt of your order takes place by e-mail immediately after sending the order. This confirmation does not legally represent an acceptance of your offer. A sales contract is only concluded when the invoice is sent. This takes place automatically after the dispatch of the product.
(3) Your inquiries for the preparation of an offer are non-binding for you. We will submit you a binding offer in text form (e.g. by e-mail), which you can accept within 5 days.
(4) The processing of the order and transmission of all information required in connection with the conclusion of the contract is partially automated by e-mail. You must therefore ensure that the e-mail address you have provided us with is correct, that the receipt of e-mails is technically ensured and, in particular, that SPAM filters do not prevent it.
§ 3 Right of retention, reservation of title
(1) You may only exercise a right of retention insofar as it concerns claims from the same contractual relationship.
(2) The goods shall remain our property until the purchase price has been paid in full.
(3) If you are an entrepreneur, the following shall apply in addition:
a) We retain title to the goods until all claims arising from the current business relationship have been settled in full. Before transfer of ownership of the reserved goods, pledging or transfer of ownership by way of security is not permitted.
b) You may resell the goods in the ordinary course of business. In this case, you hereby assign to us all claims in the amount of the invoice amount accruing to you from the resale; we accept the assignment. You are further authorised to collect the claim. If you do not meet your payment obligations properly, we reserve the right, however, to collect the claim ourselves.
c) If the reserved goods are combined and mixed, we shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing.
d) We undertake to release the securities to which we are entitled at your request to the extent that the realisable value of our securities exceeds the claim to be secured by more than 10%. The choice of the securities to be released shall be incumbent upon us.
§ 4 Warranty
(1) The statutory warranty rights exist.
(2) If you are an entrepreneur, the following shall apply in deviation from paragraph 1:
a) Only our own details and the manufacturer's product description shall be deemed agreed as the quality of the goods, but not other advertising, public praise or statements by the manufacturer.
b) You are obliged to inspect the goods immediately and with due care for deviations in quality and quantity and to notify us in writing of any obvious defects within 7 days of receipt of the goods. This shall also apply to hidden defects discovered at a later date. The assertion of warranty claims is excluded in the event of violation of the obligation to inspect and give notice of defects.
c) In the event of defects, we shall, at our discretion, provide warranty by repair or replacement. If the remedy of the defect fails, you may, at your option, demand a price reduction or withdraw from the contract. The remedy of the defect shall be deemed to have failed after a second unsuccessful attempt, unless something else results, in particular, from the nature of the item or the defect or other circumstances. In the event of rectification, we do not have to bear the increased costs arising from the transport of the goods to a location other than the place of performance, provided that the transport does not correspond to the intended use of the goods.
d) The warranty period is one year from delivery of the goods. The shortened warranty period shall not apply to culpably caused damages attributable to us arising from injury to life, limb or health and to damages or malice caused by gross negligence or wilful intent, as well as to recourse claims pursuant to §§ 478, 479 BGB.
§ 5 Liability
(1) We shall in each case be liable without limitation for damages arising from injury to life, limb or health. Furthermore, we shall be liable without limitation in all cases of intent and gross negligence, fraudulent concealment of a defect, assumption of warranty for the quality of the object of purchase and in all other cases regulated by law.
(2) Liability for defects within the scope of the statutory warranty shall be governed by the corresponding provision in our customer information (Part II) and General Terms and Conditions (Part I).
(3) As far as essential contractual obligations are concerned, our liability in case of slight negligence shall be limited to the foreseeable damage typical for the contract. Essential contractual obligations are essential obligations which result from the nature of the contract and the breach of which would endanger the achievement of the purpose of the contract as well as obligations which the contract imposes on us in accordance with its content to achieve the purpose of the contract, the fulfilment of which makes the proper execution of the contract possible in the first place and the observance of which you may regularly rely on.
(4) In the event of a breach of insignificant contractual obligations, liability for slightly negligent breaches of duty shall be excluded.
(5) Data communication via the Internet cannot be guaranteed to be error-free and/or available at all times according to the current state of the art. In this respect, we are neither liable for the permanent nor uninterrupted availability of the website and the services offered there.
§ 6 Choice of Law, Place of Performance, Place of Jurisdiction
(1) German law shall apply. In the case of consumers, this choice of law shall only apply insofar as the protection granted by mandatory provisions of the law of the country of the consumer's habitual residence is not thereby withdrawn (principle of favourability).
(2) The place of performance for all services arising from business relations with us and the place of jurisdiction shall be our registered office if you are not a consumer but a merchant, a legal entity under public law or a special fund under public law. The same shall apply if you do not have a general place of jurisdiction in Germany or the EU or if your place of residence or habitual abode is unknown at the time the action is filed. The right to also appeal to the court at another legal place of jurisdiction remains unaffected by this.
(3) The provisions of the UN Convention on Contracts for the International Sale of Goods expressly do not apply.
II. customer information
1. identity of the seller
Server hero GmbH
Toyota Avenue 33
50858 Cologne, Germany
Phone: 02234- 98172250
The European Commission provides a platform for out-of-court online dispute resolution (OS platform), available at http://ec.europa.eu/odr
2. information on the conclusion of the contract
The technical steps for the conclusion of the contract, the conclusion of the contract itself and the correction possibilities are carried out in accordance with § 2 of our General Terms and Conditions (Part I).
3. contract language, contract text storage
3.1 The language of the contract shall be German.
3.2 The complete text of the contract shall not be stored by us. Before sending the order via the online shopping cart system, the contract data can be printed or electronically saved via the browser's print function. After receipt of the order by us, the order data, the legally prescribed information for distance selling contracts and the General Terms and Conditions will be sent to you again by e-mail.
3.3 In the case of requests for quotations outside the online shopping basket system, you will receive all contract data within the scope of a binding quotation by e-mail, which you can print out or save electronically.
4. codes of conduct
4.1 We have subjected ourselves to the code of honour of Trusted Shops GmbH, which can be viewed at: http://www.trustedshops.de/shopbetreiber/qualitaetskriterien.html.
5. essential characteristics of the commodity or service
The essential characteristics of the goods and/or services can be found in the item description and the supplementary information on our website.
6. prices and payment modalities
6.1 The prices quoted in the respective offers as well as the shipping costs represent total prices. They include all price components including all applicable taxes.
6.2 The shipping costs are not included in the purchase price. They can be called up via an appropriately designated button on our website or in the respective item description, are shown separately in the course of the ordering process and are to be borne by you in addition, unless delivery free of shipping costs is promised.
6.3 The payment methods available to you are shown under a correspondingly designated button on our website or in the respective item description.
6.4 Unless otherwise stated for the individual payment methods, the payment claims from the concluded contract are immediately due for payment.
7. terms of delivery
7.1 The delivery conditions, the delivery date as well as any existing delivery restrictions can be found under an appropriately marked button on our website or in the respective item description.
7.2 Insofar as you are a consumer, it is regulated by law that the risk of accidental loss and accidental deterioration of the goods sold during shipment shall not pass to you until the goods are handed over to you, irrespective of whether the shipment is insured or uninsured. This does not apply if you have independently commissioned a transport company not named by the entrepreneur or another person appointed to carry out the shipment.
If you are an entrepreneur, delivery and dispatch shall be at your risk.
8. legal liability for defects
8.1 Liability for defects in our goods shall be governed by the "Warranty" provision in our General Terms and Conditions (Part I).
8.2 As a consumer, you are requested to check the goods immediately upon delivery for completeness, obvious defects and transport damage and to notify us and the carrier of any complaints as soon as possible. If you do not comply with this, this will have no effect on your statutory warranty claims.
These general terms and conditions and customer information have been prepared by the lawyers of the dealer association who specialise in IT law and are permanently checked for legal conformity. The Händlerbund Management AG guarantees the legal security of the texts and is liable in the event of warnings. Further information can be found at: http://www.haendlerbund.de/agb-service.
latest update: 9.05.2016
General Terms and Conditions
Table of Contents
- Scope of Application
- Conclusion of the Contract
- Right to Cancel
- Prices and Payment Conditions
- Shipment and Delivery Conditions
- Granting Rights of Use for Licence Keys
- Granting Rights of Use for Digital Content
- Reservation of Proprietary Rights
- Special Conditions for Assembly/Installation Services
- Redemption of Campaign Vouchers
- Applicable Law
- Place of Jurisdiction
- Code of conduct
- Alternative dispute resolution
1) Scope of Application
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") of the company Serverhero GmbH (hereinafter referred to as "Seller”) shall apply to all contracts concluded between a consumer or a trader (hereinafter referred to as "Client”) and the Seller relating to all goods and/or services presented in the Seller's online shop. The inclusion of the Client’s own conditions is herewith objected to, unless other terms have been stipulated.
1.2 These GTC apply accordingly to the supply of digital content, unless expressly agreed otherwise.
1.3 For contracts regarding the delivery of vouchers, these GTC shall apply accordingly, unless expressly agreed otherwise.
1.4 These GTC apply accordingly for the delivery of licence keys, unless expressly otherwise provided. In doing so, the Seller shall owe the provision of a licence key for the use of the software or content described by him as well as the granting of the contractually agreed rights for the use of the respective software or content. The Client does not acquire intellectual property rights to the software or content. The respective product description in the Seller’s online shop is decisive for the quality of the software or content.
1.5 A consumer pursuant to these GTC is any natural person concluding a legal transaction for a purpose attributed neither to a mainly commercial nor a self-employed occupational activity. A trader pursuant to these GTC is any natural or legal person or partnership with legal capacity acting in the performance of a commercial or self-employed occupational activity when concluding a legal transaction.
1.6 Digital content in the sense of these GTC is all data not stored on a tangible medium which is produced in digital form and supplied by the Seller by granting certain usage rights precisely defined in these GTC.
2) Conclusion of the Contract
2.1 The product descriptions in the Seller’s online shop do not constitute binding offers on the part of the Seller, but merely serve the purpose of submitting a binding offer by the Client.
2.2 The Client may submit the offer via the online order form integrated into the Seller's online shop. In doing so, after having placed the selected goods and/or services in the virtual basket and passed through the ordering process, and by clicking the button finalizing the order process, the Client submits a legally binding offer of contract with regard to the goods and/or services contained in the shopping cart. The Client may also submit his offer to the Seller by telephone, e-mail, postal service or per online contact form.
2.3 The Seller may accept the Client’s offer within five days,
- by transferring a written order confirmation or an order confirmation in written form (fax or e-mail); insofar receipt of order confirmation by the Client is decisive, or
- by delivering ordered goods to the Client; insofar receipt of goods by the Client is decisive, or
- by requesting the Client to pay after he placed his order.
Provided that several of the aforementioned alternatives apply, the contract shall be concluded at the time when one of the aforementioned alternatives firstly occurs. Should the Seller not accept the Client’s offer within the aforementioned period of time, this shall be deemed as rejecting the offer with the effect that the Client is no longer bound by his statement of intent.
2.5 When submitting an offer via the Seller's online order form, the text of the contract is stored by the Seller after the contract has been concluded and transmitted to the Client in text form (e.g. e-mail, fax or letter) after the order has been sent. The Seller shall not make the contract text accessible beyond this. If the Client has set up a user account in the Seller's online shop prior to sending his order, the order data shall be stored on the Seller's website and can be accessed by the Client free of charge via his password-protected user account by specifying the corresponding login data.
2.6 Prior to submitting a binding order via the Seller’s online order form, the Client may recognize input errors by reading attentively the information displayed on the screen. The enlargement function of the browser to enlarge the display on the screen may be an effective method for better recognizing input errors.
The Client can correct all the data entered via the usual keyboard and mouse function during the electronic ordering process, until he clicks the button finalizing the ordering process.
2.7 The German language is exclusively available for the conclusion of the contract.
2.8 Order processing and contacting usually takes place via e-mail and automated order processing. It is the Client’s responsibility to ensure that the e-mail address he provides for the order processing is accurate so that e-mails sent by the Seller can be received at this address. In particular, it is the Client`s responsibility, if SPAM filters are used, to ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller with the order processing can be delivered.
3) Right to Cancel
3.1 Consumers are entitled to the right to cancel.
3.2 Detailed information about the right to cancel are provided in the Seller’s instruction on cancellation.
3.3 The right to cancel does not apply to consumers, who are no nationals of a member state of the European Union at the time of concluding the contract und whose exclusive domicile and delivery address were located outside of the European Union at the time of concluding the contract.
4) Prices and Payment Conditions
4.1 Unless otherwise stated in the Seller’s product description, prices indicated are total prices including the statutory sales tax. Delivery costs, where appropriate, will be indicated separately in the respective product description
4.2 Payment can be made using one of the methods mentioned in the Seller’s online shop.
4.3 In case of delivery to countries outside the European Union, additional costs may incur in individual cases for which the Seller is not responsible and which have to be borne by the Client. This includes for example transfer fees charged by banking institutes (transfer charges, exchange fees) or import duties or taxes (customs). Such costs regarding money transfer may also incur, if delivery is not made in a country outside the European Union and the Client carries out the payment from a country outside the European Union.
4.4 If prepayment by bank transfer has been agreed upon, payment is due immediately after conclusion of the contract, unless the parties have arranged a later maturity date
5) Shipment and Delivery Conditions
5.1 Goods are generally delivered on dispatch route and to the delivery address indicated by the Client, unless agreed otherwise. During the processing of the transaction, the delivery address indicated in the Seller’s order processing is decisive.
5.2 Should the assigned transport company return the goods to the Seller, because delivery to the Client was not possible, the Client bears the costs for the unsuccessful dispatch. This shall not apply, if the Client exercises his right to cancel effectively, if the delivery cannot be made due to circumstances beyond the Client's control or if he has been temporarily impeded to receive the offered service, unless the Seller has notified the Client about the service for a reasonable time in advance.
5.3 Personal collection is not possible for logistical reasons.
5.4 Digital content will be provided to the Client exclusively in electronic form as follows:
- by e-mail
5.5 Licence keys will be provided to the Client as follows:
- by e-mail
5.6 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This only applies if the Seller is not responsible for the non-supply and if he has concluded a concrete hedging transaction with the supplier. The Seller shall make all reasonable efforts to obtain the goods. In case of non-availability or partial availability of the goods he shall inform the Client and grant him immediately counterperformance.
6) Granting Rights of Use for Licence Keys
6.1 The license key provided entitles the Client to use the software or content as described in the respective product description.
6.2 The granting of rights shall become effective only when the Client has fully paid the owed remuneration.
7) Granting Rights of Use for Digital Content
7.1 Unless otherwise stipulated in the description of contents displayed in the Seller's online shop, the Seller grants the client the non- exclusive right, unlimited in relation to place and time, to use the contents supplied for private and professional purposes.
7.2 The transmission of content to third parties or the production of copies to third parties in a way not covered by the GTC is prohibited, unless the Seller has consented to the transfer of the contractual license to third parties.
7.3 The granting of rights pursuant to section 158 (1) German Civil Law Code will only become effective, if the Client has paid the contractually stipulated compensation in full. The Seller may allow the use of the contractual contents temporarily prior to this date. A transfer of rights does not take place via such a provisional permission.
8) Reservation of Proprietary Rights
If the Seller provides advance deliveries, he retains title of ownership to the delivered goods, until the purchase price owed has been paid in full.
9.1 Should the object of purchase be deficient, statutory provisions shall apply.
9.2 The Client is asked to notify any obvious transport damages to the forwarding agent and to inform the Seller accordingly. Should the Client fail to comply therewith, this shall not affect his statutory or contractual claims for defects.
10) Special Conditions for Assembly/Installation Services
If, according to the contents of the contract, the Seller owes, in addition to the delivery of the goods, the assembly or installation of the goods at the Client's premises as well as any appropriate preparatory measures (e.g. measurement), the following shall apply:
10.1 The Seller shall perform his services at his discretion either himself or by qualified personnel selected by him. The Seller may also make use of the services of third parties (subcontractors) acting on the Seller's behalf. Unless otherwise stated in the Seller's description of services, the Client shall not be entitled to the selection of a specific person to perform the desired service.
10.2 The Client shall provide the Seller with the complete and truthful information required for the provision of the service owed, provided that the procurement of such information does not fall within the Seller's obligations under the terms of the contract.
10.3 The Seller shall contact the Client after conclusion of the contract in order to arrange a date with the Client for the performance owed. The Client shall ensure that the Seller or the personnel commissioned by the Seller have access to the Client's facilities at the agreed time .
10.4 The risk of accidental loss and accidental deterioration of the goods sold shall not pass to the Client until the assembly work has been completed and the goods have been handed over to the Client.
11) Redemption of Campaign Vouchers
11.1 Vouchers which are issued by the Seller free of charge, for a specific period of validity in the context of promotional activities and which cannot be purchased by the Client (hereinafter referred to as "campaign vouchers”) can only be redeemed in the Seller’s online shop and only within the indicated time period.
11.2 Individual products may be excluded from the voucher campaign, if such a restriction results from the conditions of the campaign voucher.
11.3 In case of an order, several campaign vouchers can be redeemed.
11.4 The goods value should meet at least the amount of the campaign voucher. The Seller will not refund remaining assets.
11.5 If the value of the campaign voucher is not enough for the order, the Client may choose one of the remaining payment methods offered by the Seller to pay the difference.
11.6 The campaign voucher credit will not be redeemed in cash and is not subject to any interest.
11.7 The campaign voucher will not be redeemed, if the Client, in the context of his legal right to cancel, returns goods paid fully or partially by a campaign voucher.
11.8 Campaign vouchers are only intended for the use of the person designated on the voucher. Transferring the campaign voucher to a third party is not permitted. The Seller is entitled but not obliged to check the entitlement of the respective voucher owner.
12) Applicable Law
12.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties under exclusion of the laws governing the international purchase of movable goods. For consumers, this choice of law only applies to the extent that the granted protection is not withdrawn by mandatory provisions of the law of the country, in which the consumer has his habitual residence.
12.2 With regard to the statutory right of cancellation, this choice of law does not apply to consumers who do not belong to a member state of the European Union at the time of the conclusion of the contract and whose sole place of residence and delivery address are outside the European Union at the time of the conclusion of the contract.
12.3 Furthermore, this choice of law regarding the right to cancel does not apply to consumers, who are not nationals of a member state of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address is located outside of the European Union at the time of concluding the contract.
13) Place of Jurisdiction
If the Client is a businessman, a legal entity of public law or a separate estate under public law with its seat in the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract. If the Client is domiciled outside the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract provided that the contract or claims from the contract can be assigned to the Client’s professional or commercial activities. In any event however, regarding the aforementioned cases the Seller is entitled to call the court responsible for the seat of the Client.
14) Code of conduct
The Seller meets the quality standards of Trusted Shops, which can be viewed at www.trustedshops.com/tsdocument/TS_QUALITY_CRITERIA_de.pdf
15) Alternative dispute resolution
15.1 The EU Commission provides on its website the following link to the ODR platform: https://ec.europa.eu/consumers/odr.
This platform shall be a point of entry for out-of-court resolutions of disputes arising from online sales and service contracts concluded between consumers and traders.
15.2 The Seller is neither obliged nor prepared to attend a dispute settlement procedure before an alternative dispute resolution entity.