Validity of our General Terms and Conditions and General Terms and Conditions of our customers
Our deliveries and services to companies shall be provided exclusively on the basis of the following General Terms and Conditions of Business.
We hereby expressly object to any reference to our own terms and conditions. Conflicting terms and conditions of our contractual partners (hereinafter: Customer) shall only be valid if we agree to their validity in writing. If our customer does not agree to them, he must immediately notify us in writing.
Initiation and conclusion of the contract
Our offers are subject to change and non-binding.
A contract is also concluded when the customer’s order is confirmed by us or we have begun with the execution.
We can make the conclusion of a contract dependent on the verification of the data provided by the customer about himself, in particular the company, the name of natural persons, address, telephone number and e-mail address. A check can be made in particular by an e-mail to be answered by the customer and/or by entering a code mentioned on the phone. If a contract has already been concluded before the data has been checked, the contract shall be concluded subject to the proviso that the data provided by the customer are correct.
Services and scope of services
We are entitled to partial performance, unless the customer has no interest in this.
Services performed by us are subject to a fee. Third-party costs are not included in our fee.
Contracts for software do not include our obligation to install and configure the software, to advise the customer, to train the customer or to provide material for this purpose. Unless training and the preparation of a specification sheet are expressly agreed in the contract, we shall not be obliged to do so.
We do not undertake any examination of the legal admissibility of any services developed by us, such as the creation of individual software. The risk of legal admissibility is borne by the customer. This applies in particular to the case that the services violate regulations of competition law, copyright and special advertising laws. However, we will point out legal risks, if they become known to us in the course of our activities.
If program documentation or an operating manual is owed, then only in machine-readable form, if applicable as part of the software or online, unless otherwise expressly agreed upon.
Insofar as service levels are the subject matter of the contract and nothing to the contrary has been agreed, we shall ensure that within the agreed service levels, from receipt of a report of a technical fault by the customer, which we have received via the contractually agreed channels, e.g. by e-mail, telephone or via a ticket system, the fault rectification is initiated and the customer is informed thereof (hereinafter: response time) – unless otherwise contractually agreed. The prerequisite for this is a fault report from the customer in which he describes the faults that have occurred and are becoming apparent and/or the sequence of system failures in a manner that is comprehensible to us. If the customer’s fault report is not comprehensible to us, we will point this out to him. The length of the response time depends on the contractual agreements. Unless otherwise agreed, the following service levels are subject to remuneration.
We are entitled to use subcontractors to fulfill our performance obligations.
Insofar as technically provided, the customer has the option of granting third parties, in particular employees, their own access authorization. The third party shall then be entitled to conclude contracts with us on behalf of the customer and to amend existing contracts with us.
Prices and remuneration
Our prices are net prices excluding statutory value added tax. Unless otherwise stated, the prices are in euros. In the absence of any other written agreement, all charges shall be based on our currently valid list of prices and conditions or our company charge rates plus packaging and shipping costs as well as the currently valid statutory value-added tax. Time charges shall also be payable for travel time. Travel costs, expenses, ancillary costs, etc. shall be additionally remunerated in accordance with our customary rates.
Unless otherwise agreed, usage-based fees shall be due on a monthly basis.
As far as contractually provided, we charge the additional contractually agreed remuneration (in total also called on-demand use) if contractually agreed services are exceeded, e.g. for web space (also called storage) or development environments (also called stage).
We are entitled to change the agreed remuneration by written declaration to the customer. If the customer does not object to the increase in remuneration within one month, the amended remuneration shall be deemed to have been approved at the latest with the subsequent use of the service. We shall expressly inform the customer once again of the consequences of a failure to object in the event of a change in the remuneration. In the event of timely objection by the customer, we shall have the right either to continue the contract at the previous conditions or to terminate the contract.
We are entitled to send our invoices to the customer by e-mail.
Term of contract
Unless otherwise agreed, the term of the contract begins with the conclusion of the contract and is concluded for an indefinite period of time, unless a minimum contract term has been agreed upon.
In the case of the delivery or other provision of software produced by third parties, the right of use shall be determined in accordance with the provisions of the respective software manufacturer. In the case of open source software, the rights of use shall be determined in accordance with the license applicable to the open source software.
In the case of the delivery of software produced by us, unless otherwise agreed in writing, the customer shall be granted a non-exclusive right of use for an unlimited period of time.
Rights of use are always transferred to the customer under the condition precedent of full payment of the agreed remuneration. Insofar as we have already previously consented to use of the work, we may revoke this consent in the event of default in payment. At the end of the right of use, the customer is obliged to return the work provided, including all documentation materials and copies, to delete it and to provide evidence of the deletion.
All rights to our work results, in particular the copyrights, the rights to inventions as well as technical property rights, are entitled to us in the relationship with the customer, even if the work results were created by specifications or employees of the customer. The customer has a simple right of use to these work results for his own purposes.
We are entitled to sign our work results, in particular advertising materials and Internet pages. For this purpose, we are also entitled to mention our name as the author in the form of a note on each Internet page created by us. We may affix this note ourselves; the customer is not entitled to remove it without our consent. In the event of subsequent changes to the Internet page that go beyond its mere updating, the customer shall update the note accordingly and draw attention to the subsequent change. We are entitled to use the work results for demonstration purposes and as a reference for our work for self-promotion at any time.
Payment, set-off and retention
Unless otherwise agreed, the contractually agreed remuneration shall be due immediately after handover of the object of purchase, acceptance of the work or after performance of the services. Insofar as the contract specifies definable partial services, partial payments on the total remuneration shall be due in each case after the partial service has been rendered by us in accordance with the share of the partial service in the total service. Fees for our ongoing or recurring services shall be invoiced annually in advance and shall be due immediately, unless otherwise agreed.
The customer may only assert a right of set-off or retention if his claims are either undisputed, legally established or ready for decision. Warranty claims do not entitle him to refuse performance, unless they are notices of defects which have been acknowledged by us in writing.
Any (delivery) dates are non-binding unless they have been agreed as binding.
Duty to examine and give notice of defects / Liability for defects in goods
The customer is obliged to examine the delivered goods, including software and documentation, for obvious defects. Obvious defects also include cases in which a different item or an insufficient quantity was delivered. Obvious defects must be notified to us in writing immediately after delivery. Defects which only become apparent later must be notified to us immediately after discovery by the customer. In the event of a breach of the duty to inspect and give notice of defects, the goods shall be deemed to have been approved in view of the defect in question.
Insofar as an item is defective, we shall be entitled, at our discretion, to subsequent performance by rectification of the defect or delivery of an item free of defects.
If the defect cannot be remedied within a reasonable period of time or if the delivery of a defect-free item is deemed to have failed, the customer may, at its option, demand a reduction of the remuneration or withdraw from the contract. However, failure shall only be deemed to have occurred if we have been given sufficient opportunity to remedy the defect or deliver a defect-free item without the contractually agreed success having been achieved, if the remedy of the defect or delivery of a defect-free item is impossible, if it is refused or unreasonably delayed by us, if there are reasonable doubts as to the prospects of success or if it is unreasonable for other reasons. The customer shall only be entitled to withdraw from the contract if he has set us a period of grace of at least four weeks in writing after the failure and this period has expired without success. The termination of the further exchange of services (e.g. in the case of withdrawal and compensation for damages) can only be declared in writing within two weeks after the deadline has expired.
If it turns out during the processing of a complaint by the customer that the complaint is unjustified and the customer has at least slightly negligently accepted that the defect complained of is not a defect, the customer shall reimburse us for the costs incurred by us as a result of the complaint and as a consequence of the defect complaint.
Claims of the customer due to a defect of the item including the manuals, instructions or other documents shall become statute-barred for newly manufactured items within one year from delivery of the item. Insofar as the statutory provisions on contracts for work and services apply to our services, the customer’s claims on account of a defect shall become statute-barred within one year of acceptance.
Duties and customers
The customer shall provide us with all information, content, data and documents required for the execution of the order free of charge.
If we provide the customer with proposals, drafts, test versions or similar, the customer shall carry out a quick and careful examination within the bounds of what is reasonable. The customer shall inform us immediately of any complaints and requests for changes.
Insofar as we provide the customer with access data, e.g. in the case of hosting or the provision of software, the customer shall be obliged to keep the access data secret from unauthorized third parties. In particular, the user name and password must be stored in such a way that access to them by unauthorized third parties is impossible, in order to exclude misuse of the access by third parties. The customer is aware that anyone in possession of the access data can access the functions protected by the access data and, for example, change existing data on the server, delete it and add other data.
The customer warrants that the information provided by him, in particular in the context of his offer to conclude a contract, e.g. in a registration, is true and complete. The customer undertakes to notify us immediately of any future changes to the information provided.
The customer may not use the contractual services for illegal, punishable or inadmissible actions or content. In particular, unlawful use shall be deemed to exist if:- the data harbor viruses, Trojans, malware or comparable harmful content or the content or presentation is deceptive or misleading (e.g. phishing),- the service is used for the mass dispatch of e-mails (so-called spamming) or the sending of messages for advertising purposes to third parties without their consent,- the services or resources are used for subdomain or hosting services – unless otherwise contractually agreed,- there are violations of the rights of others, in particular the right to one’s own image, trademark and competition law or copyright infringements, – the services are used to disseminate content that glorifies violence or incites violence, violates youth protection regulations or provides pornographic or erotic content,- the services are used to detect or exploit vulnerabilities, including the attempt or execution of intrusion, and attempting to penetrate or spying on third-party systems,- or the operation, integrity or security of our infrastructure or individual subsystems is endangered, impaired or damaged by the service or content.
The customer may not use the services, resources and domains provided by us in a way that impairs our technical infrastructure or the data and performance of other customers. In particular, without express permission, the customer is not permitted to use the resources provided for subdomain and hosting services.
Insofar as acceptance is provided for by law or contract, the work shall be accepted within two weeks if one of the contracting parties requests formal acceptance. This shall also apply to self-contained partial performances. If no acceptance is requested, the work shall be deemed to have been accepted upon expiry of four weeks from the transfer of risk. In this case, the notices of defect already made beforehand shall be considered as reservation of the customer’s rights in case of defects. Insignificant defects shall not entitle the customer to refuse acceptance.
We are liable for intent and gross negligence. Furthermore, we are liable for the negligent breach of obligations, the fulfillment of which makes the proper execution of the contract possible in the first place, the breach of which endangers the achievement of the purpose of the contract and on the compliance with which the customer regularly relies. In the latter case, however, we shall only be liable for the foreseeable damage typical for the contract, in the case of an agreed recurring remuneration, limited to the amount of the agreed remuneration for two months. We shall not be liable for the slightly negligent breach of obligations other than those specified in the above sentences. The limitation of liability shall also apply to breaches of duty by our vicarious agents. For software provided free of charge, e.g. open source software, we shall only be liable in the event of intent and gross negligence. The exclusions of liability shall not apply in the event of injury to life, limb or health. The liability according to the product liability law remains unaffected.
We shall only be liable for the loss of data to the aforementioned extent insofar as the customer backs up its data in a suitable form at intervals appropriate to the application, but at least once a day, so that the data can be restored with reasonable effort.
We shall not be liable, unless we are guilty of intent or gross negligence, for factual statements about the customer’s products and services contained in the advertising measures prepared by us for the customer. Nor shall we be liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts supplied within the scope of the contract.
Amendment of these General Terms and Conditions
We are entitled to amend or supplement these Terms and Conditions. We shall notify the customer of the amendments or supplements in text or written form no later than six weeks before they take effect. If the customer does not agree with the changes or additions to the terms and conditions, he may object to the changes with a notice period of one week from the date on which the changes or additions are intended to take effect. The objection must be made in text or written form. If the customer does not object, the changes or additions to the terms and conditions shall be deemed to have been approved by him. With the notification of the amendments or supplements to the Terms and Conditions, we shall specifically draw the customer’s attention to the intended significance of his conduct.
Written form requirement, severability clause, place of performance, place of jurisdiction and choice of law
All contractual agreements must be recorded in writing. The written form requirement shall also apply to the amendment of the written form requirement.
The invalidity of one or more provisions of these General Terms and Conditions shall not affect the validity of the remainder of the respective contract. The contracting parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose pursued by the invalid provision. The same shall apply in the event of a loophole requiring regulation.
Our obligations are to be fulfilled at our business premises, unless otherwise agreed upon.
The exclusive place of jurisdiction for all disputes arising from the contract shall be USA, if the customer is a merchant, a legal entity under public law or a special fund under public law or has no place of jurisdiction are USA.
The contractual relationship shall be governed by US law
In the case of hosting, we provide the customer with storage space (also referred to as web space) in accordance with the contractually agreed technical specification either(1) on one or more servers whose services are also used by third partiesor(2) on dedicated servers that are not available to third parties.The servers may be operated by third parties. The customer can store content on the storage space.
The server is connected to the Internet so that the data stored on the server can be forwarded to the requesting computer on request from external computers on the Internet using the protocols commonly used on the Internet. Our services in the transmission of data are limited solely to the data communication between the transfer point to the Internet and the server on which the storage space is provided. It is not possible for us to influence the data traffic behind the transfer point. A successful forwarding of information from or to the computer requesting the content is therefore not owed. Unless otherwise agreed, the transmission of data is subject to remuneration. The amount of this remuneration is based on the number of all data transmitted in connection with the contract, such as retrieval of Internet pages, mails, downloads, uploads (also called traffic).
We guarantee 99.99 percent availability of the server on an annual average until the time of transfer to the Internet. This does not include times when the corresponding servers are not available due to technical or other problems beyond our control (force majeure, fault of third parties, etc.). In order to carry out maintenance work, we are entitled to interrupt the availability of the server daily in the period from 23:00 to 06:00. If and to the extent that the customer is able to use the server during times of maintenance, there shall be no legal claim to this. If the use of the server in times of maintenance results in a reduction or discontinuation of performance, the customer shall have no claim to liability for defects or damages.
We are entitled to adapt the hardware and software used to provide the service to the respective state of the art. If, as a result of such an adaptation, additional or changed requirements arise for the content stored by the customer on the server in order to ensure the provision of the services by us, we shall notify the customer of these additional or changed requirements. The customer will decide within six weeks after receipt of the notification whether the additional or changed requirements are to be met and by when this will be done. If the customer does not declare within the six weeks that it will adapt its content to the additional or changed requirements in time for the changeover, i.e. five days before the changeover date, we shall have the right to terminate the contractual relationship with effect from the changeover date.
We give the customer the possibility of access to the server, as far as contractually agreed. For this purpose, the customer is given a user name and password with which the customer can independently save, change, add to or delete his Internet pages by way of data transfer, upon conclusion of the contract. The customer is responsible for the transfer of their own Internet pages to the server itself.
The customer is not entitled to use the server beyond the use permitted in accordance with the contract or to have it used by third parties.
If agreed, we shall provide e-mail services for the customer. These services include the receipt, storage and transmission of e-mails addressed to the customer as well as the receipt, storage and transmission of e-mails that the customer wishes to send to recipients named by him. Our obligations shall be limited to the receipt of the e-mails to be transmitted by the customer and the transfer of these e-mails to the Internet at a transfer point to the Internet provided by us. Accordingly, the service with regard to the e-mails sent to the customer consists of the receipt of the e-mails at the transfer point to the Internet and the holding of the received e-mails ready for retrieval by the customer. The storage space made available to the customer is limited and shall be specified in the contract. If incoming e-mails exceed the contractually agreed storage space, we are entitled to reject these e-mails. We may also reject e-mails if they exceed a contractually agreed size and/or contain viruses, Trojan horses, malware and/or are e-mails sent en masse. The customer will not be informed about the rejections. We are entitled to delete e-mails if the customer has moved them to the trash. After termination of the contractual relationship, we are not obligated to make e-mails available and may delete e-mails without further notice.
The customer is obliged not to send any e-mails with advertising without the prior express consent of the addressee. This applies in particular to e-mails sent en masse (so-called “spamming”). If the customer violates this obligation, we shall be entitled to stop the sending of e-mails. In addition, the customer shall immediately be obliged to cease and desist, to compensate us for any damage incurred and still to be incurred by us, and to indemnify and hold us harmless pursuant to Section 16.1. A violation also entitles us to extraordinary termination.
If the subject of the contract is a digital certificate, such as an SSL certificate or a TLS certificate, we shall conclude the contract for the digital certificate with the respective certificate issuer on behalf of and in the name of the customer. We have no influence on the certificate issuer. We therefore do not assume any guarantee that the certificate requested for the customer will be allocated or that it will be valid after allocation.
Duties of the customer in hosting
The customer is obligated not to store any content on the contractual storage space, the duplication, provision, publication and use of which violates legal regulations or the rights of third parties, in particular copyright, trademark and other labeling rights or personal rights. If the customer violates this obligation, he shall be immediately obligated to refrain from any further violation, to compensate us for any damage incurred and still to be incurred, and to indemnify us and hold us harmless from any claims for damages and reimbursement of expenses of third parties caused by the violation. The indemnification obligation also includes the obligation to fully indemnify us from legal defense costs. Our other claims, in particular to block the content, shall remain unaffected. A violation entitles us to extraordinary termination.
The customer is obligated to take appropriate measures to keep the applications or stored data used or utilized by him on our systems, in particular the content stored on the storage space, secure and up-to-date so that the operation, integrity and security of our infrastructure and systems can be guaranteed at all times.
Blocking the connection to the Internet
We are entitled to interrupt the connection of the storage space and/or server to the Internet if there is sufficient suspicion of illegal content, due to a warning from the alleged infringer or investigations by state authorities. We shall also be entitled to interrupt the connection of the storage space and/or server to the Internet if the storage space made available to the customer contains viruses, Trojan horses or malware and/or if the storage space made available to the customer is impaired by an external event, e.g. DDoS attacks, and the security, integrity or availability of our IT is thereby impaired.
The customer shall be notified immediately of the blocking, stating the reasons, and shall be requested to remove the allegedly illegal content or to provide evidence of its legality and, if necessary, to prove it.
The blocking shall be lifted as soon as the suspicion is invalidated or we have had the opportunity to terminate the contract extraordinarily due to the customer’s behavior or the reason for the blocking has ceased to exist.
Insofar as the contents on the storage space provided by us to the customer are protected by copyright, the customer grants us the following rights: The customer grants us the right to make the contents stored by him on the storage space provided by us accessible in the event of queries via the Internet, in particular to reproduce and transmit them for this purpose as well as to reproduce them as for the purpose of data backup.
As far as the customer is in default with due payments, we are also entitled to interrupt the connection of the storage space and/or server to the Internet.
The customer’s obligation to pay the agreed remuneration shall remain unaffected by a blockage.
Hosting data backup
Insofar as a data backup or a backup is agreed between the parties, a daily automatic backup of the data on the server shall be carried out. Insofar as the servers are available, a data backup is carried out which enables the data to be restored to a status which in each case does not lie more than 48 hours in the past. Beyond that we are not obliged to keep the data backups. The customer has no claim to the surrender of a backup medium, but only to the retransfer of the backed-up data to the server.
The remuneration shall be invoiced annually in advance and is due immediately.
Contract term and termination
Unless otherwise agreed, the hosting agreement shall commence upon the conclusion of the contract and shall be concluded for an indefinite period of time, unless a minimum contract term has been agreed. The hosting agreement may be terminated by either party with 30 days’ notice and the agreement on the registration of a domain and on an SSL certificate with 30 days’ notice. The right to extraordinary termination for good cause remains unaffected. Good cause entitling us to extraordinary termination exists in particular if the customer is in default of payment of the remuneration or a not insignificant part of the remuneration for two consecutive dates or is in default of payment of the remuneration in an amount that reaches the remuneration for two months.
An extraordinary termination due to non-granting of the contractual use is only possible if we have been given sufficient opportunity to remedy the defect and this has failed. The rectification of defects shall only be deemed to have failed if it is impossible, if we refuse to rectify the defect or if it is unreasonably delayed, if there are reasonable doubts as to the prospects of success or if we cannot reasonably be expected to do so for other reasons.
After termination of the contract, there is no obligation to store e-mails and content stored by the customer on the storage space. After termination of the contractual relationship, we may delete emails and content.
Liability for defects and liability
We shall only be liable for defects that were already present when the storage space was provided to the customer if we are responsible for these defects.
The customer shall notify us immediately of any defects in contractual services known to him. If the customer fails to notify us in good time for reasons for which he is responsible, this shall constitute contributory causation or contributory negligence. Insofar as we were unable to remedy the defect or to remedy the defect in a timely manner as a result of the omission or delay in notification, the customer shall not be entitled to reduce the contractual remuneration in whole or in part, to demand compensation for the damage caused by the defect or to terminate the contract extraordinarily due to the defect without observing a period of notice.
The customer’s claims for defects shall become time-barred in accordance with the statutory provisions, at the latest in six months after termination of the hosting agreement.
Place of fulfillment
The place of fulfillment for hosting is the location of the servers.
On behalf of and in the name of the customer, we shall take over the registration of the domain listed in the contract with the registry responsible for the respective domain in accordance with the following paragraph.
Depending on their ending, the domains are assigned and administered by different organizations (hereinafter: registries) on the basis of their own registration conditions. When registering the domain for the customer, a contractual relationship is established between the customer and the respective registry on the basis of its registration conditions. We are free to register the domain directly with the registry or through third parties. The customer becomes the owner of the domains. The customer instructs us to make all necessary declarations to the respective registry or the third party. We do not owe the success of the application, i.e. the actual registration of the domains. We have no influence on the allocation practice of the registries. Therefore, after the domain application, we cannot influence that the requested domains are actually assigned to the customer.
We do not check whether the registration and/or the use of the domains for the customer violates rights of third parties or violates general laws. The customer is responsible for the selection of the strings to be registered as domains. He has to check before the registration whether the registration and/or the intended use of the domains violates rights of third parties or violates general laws.
For the duration of the contract we are the contact person of the registry for the contractual domains.
Obligations of the customer
The customer is responsible for the selection of the domain to be registered. He has to check before the registration and before the acquisition of the domain whether the registration infringes rights of third parties or violates general laws. If the customer violates these obligations, he is immediately obligated to refrain from further violation, to compensate us for the damage incurred and still to be incurred, as well as to indemnify us and hold us harmless from claims for damages and reimbursement of expenses of third parties caused by the violation. The indemnification obligation also includes the obligation to fully indemnify us from legal defense costs. Other claims by us, in particular to block the domain, shall remain unaffected. An infringement entitles us to extraordinary termination.
The customer is obliged to cooperate to a reasonable extent in all measures required with regard to the registration, the maintenance of the registration and the disposal of the domain, in particular its transfer or the modification of entries in the databases of the registries.
Contract term and termination
Unless otherwise agreed, the agreement on the domain begins with the conclusion of the contract and is concluded for an indefinite period, unless a minimum contract period has been agreed. The agreement can be terminated by either party with a notice period of 30 days. The right to extraordinary termination for good cause remains unaffected. Good cause entitling us to extraordinary termination shall be deemed to exist in particular if the customer is in default of payment of the remuneration or a not insignificant part of the remuneration for two consecutive dates or is in default of payment of the remuneration in a period extending over more than two months in an amount equal to the remuneration for two months.
As far as we are obliged to release a domain, this obligation exists only when the customer has fulfilled all payment obligations.
If we have taken over the registration of a domain for the customer, the contractual relationship existing between the customer and the registry regarding the domain shall remain in force even if the contractual relationship between the customer and us is terminated, insofar as the customer does not also terminate vis-à-vis the registry.
Provision of software
Insofar as contractually agreed, we shall provide the customer with the software specified in detail in the contract (also referred to as a license) on a server at the customer’s premises or on a server that can be accessed via telecommunications networks, in particular the Internet or VPN lines, in return for payment for the term of the contract. Insofar as we provide the software on a server that can be reached via telecommunications networks, the transfer point for the software and, if applicable, data is the network transfer point of the data center in which the software is provided. Insofar as the contract also includes the provision of apps as software for mobile devices, we will place the app in a platform for downloading apps (e.g. in an app store). We will use the software to be provided in the version currently offered by the manufacturer or by us within the scope of technical possibilities if the change of the software version is reasonable for the customer taking into account our interests. However, the customer shall have no claim to the use of a new version of the software provided. We are entitled to make changes to the software if these serve the purpose of maintenance or improvement. This shall not apply if the measures are unreasonable for the customer. We shall inform the customer in good time in advance. If the customer incurs expenses as a result of these measures, we shall reimburse the customer for these expenses.
For the term of the contract, we grant the customer the paid, non-exclusive and non-transferable right to use the agreed software to the agreed extent on the server itself as intended. The customer is not entitled to use the software beyond the use permitted in accordance with the contract or to have it used by third parties or to make it accessible to third parties. In particular, the customer is not permitted to make the software or parts thereof available for a limited period of time, especially not to rent or lend it. The customer does not become the owner of the software or of data carriers, the software is merely made available to him for use.
We may discontinue services provided by us free of charge at any time, unless this is unreasonable for the Customer.
The degree of availability for software that we provide on a server via telecommunications networks depends on the contractual agreement. Availability is the technical usability of the software to be provided at the network transfer point of the data center in which the software is provided. We guarantee 99.99 percent availability. Excluded from this are times when the corresponding servers cannot be reached due to technical or other problems beyond our control (force majeure, fault of third parties, etc.). In order to carry out maintenance work, we are entitled to interrupt the availability of the server daily in the period from 23:00 to 06:00. If and to the extent that the customer is able to use the provided software during times of maintenance, there shall be no legal claim to this. If the use of the provided software during times of maintenance results in a reduction or discontinuation of performance, the customer shall have no claim to liability for defects or damages.
We owe the provision of storage space for the data generated by the customer through the use of the software provided and/or the data required for the use of the software provided only if this has been expressly agreed in writing.
We only carry out a backup of data insofar as it has been expressly agreed upon.
We shall not be subject to any custody or safekeeping obligations with regard to the data transmitted and processed by the customer. The customer is solely responsible for compliance with the retention periods under commercial and tax law.
Locking and data backup
The provisions on blocking the connection to the Internet pursuant to Section 17 and on data backup pursuant to Section 18 shall apply mutatis mutandis.
The remuneration will be invoiced in advance and is due immediately.
Contract term and termination
Unless otherwise agreed, the agreement for the provision of software shall commence upon conclusion of the contract and shall be concluded for an indefinite period, unless a minimum contract term has been agreed. The contract may be terminated by either party with 30 days’ notice. The right to extraordinary termination for good cause remains unaffected. Good cause entitling us to extraordinary termination shall be deemed to exist in particular if the customer is in default of payment of the remuneration or a not insignificant part of the remuneration for two consecutive dates or is in default of payment of the remuneration for a period of more than two months in an amount equal to the remuneration for two months.
An extraordinary termination due to non-granting of the contractual use is only possible if sufficient opportunity has been given to remedy the defect and this has failed. The rectification of defects shall only be deemed to have failed if it is impossible, if we refuse to rectify the defect or if it is unreasonably delayed, if there are reasonable doubts as to the prospects of success or if we cannot reasonably be expected to do so for other reasons.
If, in the case of the provision of software, the subject matter of the contract also includes the provision of storage space on a server accessible via telecommunications networks, we shall, upon termination of the contractual relationship and at the customer’s request, surrender a copy of the data stored by the customer on the storage space. The data shall be handed over on a data carrier or by remote data transmission in the data format in which the data is stored on the server. We will delete the data stored on the server within 30 days after the termination of the contractual relationship.
Warranty and liability
We shall only be liable for defects that were already present when the software was provided and/or the storage space was made available to the customer if we are responsible for these defects.
The customer shall notify us immediately of any defects in contractual services known to him. If the customer fails to notify us in good time for reasons for which he is responsible, this shall constitute contributory causation or contributory negligence. Insofar as we were unable to remedy the defect or were unable to remedy the defect in a timely manner as a result of the omission or delay in notification, the customer shall not be entitled to reduce the contractual remuneration in whole or in part, to demand compensation for the damage caused by the defect or to terminate the contract extraordinarily due to the defect without observing a period of notice.
Place of fulfillment
The place of performance for the provision of software is at the location of the server.