Service and Usage Agreement

General Terms and Conditions - EGhosting.de
Table of contents

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  1. scope
  2. Services of the provider
  3. Performance changes
  4.Conclusion of contract
  5. Obligations of the customer
  6. Compensation and payment conditions
  7. Contract duration and termination
  8. Liability
  9. Changes to the terms and conditions
10. Applicable law, place of jurisdiction

1) Scope

1.1 These General Terms and Conditions (hereinafter “Terms and Conditions”) of (owner) Daniel Schwieger, acting under “Fa. Zankoo.de – EGhosting.de” (hereinafter “Provider”), apply to all contracts concluded by an entrepreneur (hereinafter “Customer”) ) concludes with the provider regarding the services presented by the provider on its website. The inclusion of the customer's own terms and conditions is hereby objected to, unless otherwise agreed.

1.2 These General Terms and Conditions also apply exclusively if the provider carries out the service for the customer without special reservation despite being aware of the customer's conditions that contradict or deviate from these conditions.

1.3 An entrepreneur within the meaning of these General Terms and Conditions is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity.

1.4 Entrepreneurs within the meaning of these General Terms and Conditions are also authorities or other institutions under public law if they act exclusively under private law when concluding the contract.

2) Provider services

2.1 The provider provides services to make content accessible via the Internet. For this purpose, it provides the customer with system resources on a virtual server. The customer can store content up to a certain extent on this server. The exact scope can be found in the provider's service description.

2.2 The content is kept available on the server under an Internet domain assigned to the customer for access via the Internet. The provider's services in the transmission of data are limited solely to data communication between the transfer point of the provider's own data communication network to the Internet and the server provided for the customer. The provider is unable to influence data traffic outside of its own communications network. A successful forwarding of information from or to the computer querying the content is therefore not required.

2.3 The provider's online service is offered subject to availability. 100 percent availability cannot be technically achieved and therefore cannot be guaranteed to the customer by the provider. However, the provider endeavors to keep the service available as consistently as possible. In particular, maintenance, security or capacity issues as well as events that are beyond the control of the provider (disruptions to public communication networks, power outages, etc.) can lead to disruptions or the temporary shutdown of the service.

2.4 The provider provides the aforementioned services with an overall availability of 99%.

The availability is calculated on the basis of the time in the contract period for the respective calendar month less the maintenance times. The provider will, as far as possible, carry out the maintenance work during periods of low usage.

2.5 Unless otherwise agreed, the provider does not create backup copies of the customer content. The customer is responsible for creating and maintaining sufficient backup copies of the content stored with the provider and for not storing them exclusively on the provider's servers.

2.6 The provider is entitled to adapt the hardware and software used to provide the services to the current state of the art. If such an adjustment results in additional requirements for the content stored by the customer on the server in order to ensure that the provider's services are provided, the provider will inform the customer of these additional requirements in a timely manner. In this case, the customer must inform the provider no later than four weeks before the changeover date whether they will adapt their content to the additional requirements in time - i.e. no later than three working days before the changeover date - for the changeover. If the customer refuses to adapt his content or does not declare this to the provider within the aforementioned period, the provider can terminate the contractual relationship with effect from the time of the changeover.

2.7 The provider also takes over the procurement of the Internet domain(s) under which the customer's content is to be made available. To do this, the customer must name the Internet domain(s) he or she desires. The provider assumes no liability for the availability of the desired domain(s) or the non-infringement of third-party rights (e.g. name, trademark or title rights) by registering the desired domain(s) to the customer. If the desired domain(s) are no longer available, the provider will inform the customer immediately and make up to three alternative suggestions that are as close as possible to the originally desired domain. The customer must then decide on one of the alternative suggestions within a reasonable period of time set by the provider. If the customer allows the reasonable deadline set by the provider to pass without result, the provider is entitled to select a domain for the customer. The provider is not responsible for obtaining rights to domains that have already been registered for third parties by the responsible registry. The integration of an external domain that is managed by another provider is not permitted. The provider must register the domain in the name and for the account of the customer. In particular, when selecting the domain name and the registration office as well as when negotiating the conditions, the provider must independently represent the customer's financial interests and use its expertise to serve the customer. Upon request, he must provide the customer with information and account at any time about the status and progress of his activities in this matter. All rights and naming rights acquired for the domain belong to the customer.

3) Performance changes

3.1 The provider reserves the right to change the services offered or to offer different services unless this is unreasonable for the customer.

3.2 The provider also reserves the right to change the services offered or to offer different services,

- if he is obliged to do so due to a change in the legal situation;

- insofar as he is complying with a court judgment or an official decision against him;

- to the extent that the respective change is necessary to close existing security gaps;

- if the change is only beneficial for the customer; or

- if the change is of a purely technical or procedural nature without any significant impact on the customer.

3.3 Changes that have only an insignificant impact on the provider's services do not constitute changes to services within the meaning of this section. This applies in particular to changes of a purely graphic nature and mere changes to the arrangement of functions.

4) Conclusion of contract

4.1 The services described on the provider's website do not represent binding offers on the part of the provider, but rather serve to make a binding offer by the customer.

4.2 The customer can submit the offer using the online order form provided on the provider's website. After entering their personal data, the customer submits a legally binding contract offer with regard to the selected services by clicking the button that completes the ordering process. The customer can also submit the offer to the seller by email, fax, post or telephone.

4.3 The provider can accept the customer's offer within five days,

- by sending the customer a written order confirmation or an order confirmation in text form (fax or email), whereby the receipt of the order confirmation by the customer is decisive, or

- by asking the customer to pay after placing their order.

If several of the aforementioned alternatives are present, the contract is concluded at the point in time at which one of the aforementioned alternatives occurs first. If the provider does not accept the customer's offer within the aforementioned period, this is considered a rejection of the offer with the result that the customer is no longer bound by his declaration of intent.

4.4 The deadline for accepting the offer begins on the day after the customer sends the offer and ends at the end of the fifth day following the sending of the offer.

4.5 When submitting an offer via the provider's online order form, the contract text is saved by the provider after the contract has been concluded and sent to the customer in text form (e.g. e-mail, fax or letter) after the order has been sent. The provider will not make the contract text available beyond this. If the customer has set up a user account for the provider's website before sending his order, the order data will be archived on the provider's website and can be accessed free of charge by the customer via his password-protected user account by providing the relevant login details.

4.6 Before bindingly submitting the order via the provider's online order form, the customer can continually correct his entries using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the order is bindingly submitted and can also be corrected there using the usual keyboard and mouse functions.

4.7 Only the German language is available for concluding the contract.

4.8 Order processing and contact usually take place via email and automated order processing. The customer must ensure that the email address he provided to process the order is correct so that emails sent by the provider can be received at this address. In particular, when using SPAM filters, the customer must ensure that all emails sent by the provider or by third parties commissioned by the provider to process the order can be delivered.

5) Customer Obligations

5.1 The content stored by the customer in the storage space intended for him may be protected by copyright and data protection law. The customer grants the provider the right to make the content stored on the server accessible via the Internet when queries are made, in particular to reproduce and transmit it for this purpose and to be able to reproduce it for data backup purposes. The customer is responsible for checking whether his use of personal data meets data protection requirements.

5.2 The customer undertakes not to store any content on the storage space provided that violates applicable law or infringes the rights of third parties. The customer also ensures that programs, scripts, etc. installed by him do not endanger the operation of the provider's server or communications network or the security and integrity of other data stored on the provider's servers.

5.3 The customer releases the provider from all claims that third parties assert against the provider due to violation of their rights due to content stored by the customer on the server. The customer assumes the costs of the necessary legal defense including all court and legal fees in an appropriate amount. This does not apply if the customer is not responsible for the infringement. In the event of a claim by third parties, the customer is obliged to provide the provider immediately, truthfully and completely with all information required to examine the claims and defend them.

5.4 In the event of an imminent or actual violation of the above obligations as well as if third parties assert claims that are not obviously unfounded against the provider due to the content stored on the server, the provider is entitled to link this content, taking into account the legitimate interests of the customer temporarily suspend the Internet in whole or in part with immediate effect. The provider will inform the customer about this measure immediately.

5.5 If programs, scripts, etc. installed by the customer endanger or impair the operation of the provider's server or communications network or the security and integrity of other data stored on the provider's servers, the provider can deactivate or uninstall these programs, scripts, etc . If the elimination of the threat or impairment requires this, the provider is also entitled to interrupt the connection of the content stored on the server to the Internet. The provider will inform the customer about this measure immediately.

5.6 To access the storage space intended for the customer, the customer receives a user ID and a changeable password. The customer is obliged to change the password at regular intervals. The customer may only pass on the password to people who have been authorized by him to access the storage space.

6) Compensation and payment terms

6.1 Unless otherwise stated in the provider's offer, the prices stated are gross prices and include statutory sales tax.

6.2 The remuneration for the provider's services must be paid by the customer monthly in advance by the fifth working day of each month at the latest, unless otherwise agreed. The obligation to pay the fee begins when the storage space is activated by the provider. For the month in which the first activation takes place, the remuneration for each day following the activation is 1/30 of the agreed amount.

6.3 The compensation is debited from the customer's bank account monthly by credit card, bank transfer and PayPal direct debit. For this purpose, the customer grants the provider a direct debit mandate (SEPA) that can be revoked at any time. If the direct debit is not honored due to insufficient account funds or due to incorrect bank details being provided, or if the customer objects to the debit even though he is not authorized to do so, the customer must bear the fees resulting from the chargeback from the respective credit institution if he is responsible for this .

6.4 The provision of services by the provider is tied to the customer meeting his payment obligations in a timely manner. If the customer defaults on paying a significant portion of the remuneration owed for two consecutive months, the provider may terminate the contractual relationship for good cause without observing a notice period.

7) Contract duration and termination

7.1 The contract is concluded for an unlimited period, but at least for a period of one year (minimum term). During the minimum term, the contract can be terminated with three months' notice to the end of the minimum term. If the contract is not terminated on time, it will be extended for another year and can then be terminated again with three months' notice to the end of the respective contract term.

7.2 The right to extraordinary termination for good cause remains unaffected. An important reason exists if, taking into account all the circumstances of the individual case and weighing up the interests of both parties, the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the expiry of a notice period.

7.3 Terminations must be made in writing or in text form (e.g. by email).

7.4 After termination of the contractual relationship, the provider makes the content stored in the storage space intended for the customer available to the customer on a data medium. Any rights of retention of the provider remain unaffected.

8) Liability

8.1 The provider is liable for all contractual, quasi-contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:

8.1.1 The provider is liable without restriction for any legal reason

- in the event of intent or gross negligence,

- in the event of intentional or negligent injury to life, body or health,

- based on a guarantee promise, unless otherwise regulated in this regard,

- due to mandatory liability such as under the Product Liability Act.

8.2 If the provider negligently violates an essential contractual obligation, liability is limited to the foreseeable damage that is typical for the contract, unless unlimited liability exists in accordance with the previous paragraph. Essential contractual obligations are obligations that the contract imposes on the provider according to its content in order to achieve the purpose of the contract, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the customer can regularly rely.

8.3 Otherwise, liability on the part of the provider is excluded.

8.4 The above liability regulations also apply with regard to the liability of the provider for its vicarious agents and legal representatives.

9) Changes to the terms and conditions

9.1 The provider reserves the right to change these terms and conditions at any time without giving reasons, unless this is unreasonable for the customer. The provider will notify the customer of changes to the terms and conditions in text form in a timely manner. If the customer does not object to the validity of the new General Terms and Conditions within four weeks of notification, the changed General Terms and Conditions are deemed to have been accepted by the customer. In the notification, the provider will inform the customer of his right to object and the importance of the objection period. If the customer objects to the changes within the aforementioned period, the contractual relationship continues under the original conditions.

9.2 The provider also reserves the right to change these terms and conditions,

- if he is obliged to do so due to a change in the legal situation;

- insofar as he is complying with a court judgment or an official decision against him;

- to the extent that he introduces additional, completely new services, services or service elements that require a service description in the General Terms and Conditions, unless the previous usage relationship is adversely changed as a result;

- if the change is only beneficial for the customer; or

- if the change is purely technical or procedural, unless it has a significant impact on the customer.

9.3 The customer's right of termination in accordance with Section 7 remains unaffected by this.

10) Applicable law, place of jurisdiction

10.1 The law of the Federal Republic of Germany applies to all legal relationships between the parties.

10.2 If the customer acts as a merchant, a legal entity under public law or a special fund under public law based in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract is the provider's place of business. If the customer is based outside the territory of the Federal Republic of Germany, the provider's place of business is the exclusive place of jurisdiction for all disputes arising from this contract. In the above cases, however, the provider is in any case entitled to appeal to the court at the customer's registered office.