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 the provider (KernelHost GmbH) via the kernelhost.com website (as well as kernelhost.de and kernelhost.net). Unless otherwise agreed, the inclusion of any of your own terms and conditions is rejected.
(2) A consumer within the meaning of the following provisions is any natural person who concludes a legal transaction for purposes that are predominantly attributable neither to their commercial nor to their independent professional activity. An entrepreneur is any natural or legal person or a partnership with legal capacity that is acting in the exercise of their independent professional or commercial activity when concluding a legal transaction.
§ 2 Formation of the contract
(1) The object of the contract is the sale of goods. Our offers on the Internet are non-binding and do not constitute a binding offer to conclude a contract.
(2) You can submit a binding purchase offer (order) via the online shopping cart system. The goods intended for purchase are stored in the "shopping cart". You can use the corresponding button in the navigation bar to call up the "shopping cart" and make changes there at any time. After calling up the "Checkout" page and entering your personal data as well as the payment and shipping conditions, all order data will be displayed on the order overview page. Before submitting the order, you have the option to review all the information here, change it (also via the "back" function of the Internet browser), or cancel the purchase. By submitting the order using the "order with costs" button you submit a binding offer to us.
(3) Acceptance of the offer (and thus conclusion of the contract) takes place immediately after the order by confirmation in text form (e.g. email), in which the execution of the order or delivery of the goods is confirmed (order confirmation). If you have not received a corresponding message, you are no longer bound to your order. In this case, any services already rendered will be refunded immediately.
(4) Your inquiries regarding the creation of an offer are non-binding for you. We will make you a binding offer in text form (e.g. by email), which you can accept within 5 days.
(5) Order processing and the transmission of all information required in connection with the conclusion of the contract is partially automated via email. You must therefore ensure that the email address you have stored with us is correct, the receipt of emails is technically ensured, and in particular is not prevented by SPAM filters.
§ 3 Right of retention, retention of title
(1) You can only exercise a right of retention if it concerns claims from the same contractual relationship.
(2) The goods remain our property until the purchase price has been paid in full.
(3) If you are an entrepreneur, the following also applies:
a) We reserve ownership of the goods until all claims from the current business relationship have been fully settled. Pledging or transfer by way of security is not permitted before ownership of the reserved goods has been transferred.
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 that arise from the resale; we accept the assignment. You remain authorised to collect the claim. Should you fail to meet your payment obligations properly, we reserve the right to collect the claim ourselves.
c) If the reserved goods are combined and mixed, we acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed objects at the time of processing.
d) We undertake to release the securities to which we are entitled at your request insofar as the realisable value of our securities exceeds the claim to be secured by more than 10 %. The selection of collateral to be released is at our discretion.
§ 4 Warranty
(1) Statutory warranty rights apply.
(2) Insofar as you are an entrepreneur, the following applies in deviation from paragraph 1:
a) Only our own information and the manufacturer's product description are deemed to be agreed as the quality of the goods, but not other advertising, public promotions or statements made by the manufacturer.
b) You are obliged to inspect the goods immediately and with due care for any deviations in quality and quantity and to notify us of any obvious defects in writing within 7 days of receipt of the goods; timely dispatch of the notice is sufficient to meet the deadline. The same applies to hidden defects discovered later, from the date of discovery. In the event of a violation of the duty to inspect and give notice of defects, the assertion of warranty claims is excluded.
c) In the event of defects, we provide a warranty at our discretion through rectification or replacement. If rectification of the defect fails, you may demand a reduction of the price or withdraw from the contract. The remedial measures are deemed to have failed after a second unsuccessful attempt, unless the nature of the goods or the defect or other circumstances indicate otherwise. In the event of rectification, we do not have to bear the increased costs incurred by moving the goods to a location other than the place of performance, provided the move 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 does not apply to culpably caused damage from injury to life, limb or health, or grossly negligent or wilful damage or fraudulent intent, nor in the case of recourse claims.
§ 5 Publishing content on the server
(1) You undertake to mark the content posted on the Internet as your own or third-party content and to provide your full and correct name and address. Additional obligations may result from the provisions of the Telecommunications Act and the Telemedia Act. You undertake to check and fulfil this carefully on your own responsibility.
(2) You undertake not to publish any content that violates the rights of third parties or otherwise contravenes applicable law. The storage of erotic, pornographic, extremist or offensive content is not permitted under any circumstances. We are entitled to block access to your server in the event of a violation. The same applies if you publish content that is likely to injure third parties in their honour, or to insult or disparage individuals or groups of people. We are not obliged to monitor our customers' content.
(3) The operation of a mail server and the sending of spam mails are strictly prohibited. This applies in particular to the sending of inadmissible, unsolicited advertising to third parties. When sending emails, it is also largely prohibited to provide false sender data or to disguise the sender's identity in any other way. In the event of non-compliance, we are entitled to block access to your server.
§ 6 Hardware and service
(1) We aim to provide the desired performance for every customer. However, if applications are used that frequently or permanently push the CPU or a CPU core to its maximum, we reserve the right to take measures to avoid damage to the hardware. This may include suspending the server.
(2) If applications are used that mostly or permanently lead to massive utilisation of the bandwidth, hard disk, RAM or other parts of the hardware, the server will be blocked by us.
(3) The consumer is liable for any hardware damage as long as it was caused by the consumer.
§ 7 Liability
(1) We are fully liable for damage resulting from injury to life, limb or health. Furthermore, we are liable without limitation in all cases of intent and gross negligence, fraudulent concealment of a defect, acceptance of a guarantee of 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 is governed by the corresponding regulation in our customer information (Part II) and General Terms and Conditions (Part I).
(3) Where essential contractual obligations are affected, our liability in the event of slight negligence is limited to the contract-typical, foreseeable damage. Essential contractual obligations are essential obligations that arise from the nature of the contract and the violation of which would jeopardise the achievement of the contractual purpose, as well as obligations that the contract imposes on us in order to achieve the contractual purpose, the fulfilment of which makes the proper execution of the contract possible in the first place and on whose compliance you may regularly rely.
(4) Liability for slightly negligent breaches of duty is excluded in the event of a violation of insignificant contractual obligations.
(5) According to the current state of the art, data communication via the Internet cannot be guaranteed to be error-free and/or available at all times. In this respect, we are not liable for the constant or uninterrupted availability of the website and the services offered there.
(6) It is again stated explicitly that the consumer is liable for any hardware damage as long as it was caused by the consumer.
§ 8 Choice of law, place of performance, place of jurisdiction
(1) For consumers, this choice of law applies only insofar as the protection granted by mandatory provisions of the law of the state of the consumer's habitual residence is not thereby withdrawn (favourability principle).
(2) The place of performance for all services arising from existing business relationships with us, as well as the place of jurisdiction, is our registered office, provided that you are not a consumer but a merchant, a legal person under public law, or a special fund under public law. The same applies if you do not have a general place of jurisdiction in Austria or the EU, or if your residence or habitual residence is not known at the time of filing the lawsuit. The authority to also bring proceedings before a court at another statutory place of jurisdiction remains unaffected.
(3) The provisions of the United Nations Convention on Contracts for the International Sale of Goods explicitly do not apply.
II. Customer Information
1. Identity of the seller
KernelHost GmbH
Krottenbachstraße 277
1190 Vienna
Austria
Phone: +43 650 8209883
Email: info@kernelhost.com
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 possibilities for correction take place in accordance with § 2 of our General Terms and Conditions (Part I).
3. Contract language, contract text storage
3.1. The contract language is German and English.
3.2. We do not save the complete text of the contract. Before the order is sent via the online shopping cart system, the contract data can be printed out or saved electronically using the print function of the browser. After receipt of the order by us, the order data, the legally required information for distance contracts, and the General Terms and Conditions will be sent to you again by email.
3.3. If you have a request for a quote outside the online shopping cart system, you will receive all contract data as part of a binding offer by email, which you can print or save electronically.
4. Essential characteristics of the goods or services
The essential characteristics of the goods and/or services can be found in the article description and the additional information on our website.
5. Prices and payment terms
5.1. The prices listed in the respective offers as well as the shipping costs represent total prices. They include all price components, including all applicable taxes.
5.2. The shipping costs are not included in the purchase price. They can be accessed via a correspondingly labelled button on our website or in the respective article description, are shown separately during the ordering process, and must be borne by you in addition, unless free delivery is promised.
5.3. The payment methods available to you are shown under a correspondingly labelled button on our website or in the respective article description.
5.4. Unless otherwise specified for the individual payment methods, the payment claims arising from the contract concluded are due for payment immediately.
6. Delivery conditions
6.1. The delivery conditions, the delivery date, and any existing delivery restrictions can be found under a correspondingly labelled button on our website or in the respective article description.
6.2. Insofar as you are a consumer, it is regulated by law that the risk of accidental loss and accidental deterioration of the sold item only passes to you when the goods are handed over, regardless 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 to carry out the shipment. If you are an entrepreneur, delivery and dispatch are at your own risk.
7. Statutory liability for defects
7.1. Liability for defects in our goods is governed by the "Warranty" provisions of our General Terms and Conditions (Part I).
7.2. As a consumer, you are asked to check the goods for completeness, obvious defects, and transport damage immediately upon delivery, and to notify us and the carrier of any complaints as soon as possible. Failure to do so will not affect your statutory warranty claims.
These General Terms and Conditions and customer information were created by the lawyers of the Händlerbund (Merchants' Association) who specialise in IT law, and are continuously checked for legal conformity. Händlerbund Management AG guarantees the legal security of the texts and is liable in the event of warning notices. For more information, see: https://www.haendlerbund.de/agb-service.
