General Terms and Conditions of Business
1. Applicability of the Terms and Conditions
The following terms and conditions apply to all services. These apply to: the creation, design and hosting of websites; the rental of CGI storage, 2nd and 3rd level domains, short URLs; as well as POP3 accounts, FTP access and our counters.
The current terms and conditions shall apply in each case.
Providing incorrect or incomplete personal details or an incorrect email address will always result in the deletion of the relevant service and may even lead to exclusion from the system.
2. Prices
Unless otherwise stated, our prices are quoted in euros (€). Our list prices valid at the time the contract is concluded shall apply. If the price depends on the type of customer (e.g. private or business), the contracting party is obliged to inform us immediately of any change to these price-determining characteristics. It is not possible for a business customer to pay the prices intended for private customers.
For agreed consultancy meetings, our standard hourly rate is generally charged, although these costs are waived if a contract is concluded.
Invoices are due for payment within 10 days of the invoice date or, in all cases, three months in advance, by bank transfer or in cash without any deductions. A valid payment is deemed to have been made in the case of a bank transfer on the date the amount is credited to our account. We reserve the right to refuse payment by cheque or bill of exchange.
If the payment deadline is not met, the contracting party shall bear the interest charges and costs incurred by us.
In the event of late payment, the default interest rates set out in the German Civil Code (BGB) shall apply.
Whilst the contracting party is in default, we shall not be obliged to perform any further services.
In the case of services subject to a charge, the contracting party must have full legal capacity.
3. Assignment, Partial Performance
The assignment of claims for performance against us is excluded.
Partial performance is permitted if agreed with the contracting party.
4. Risk to claims
If, after the conclusion of the contract, we become aware of circumstances that give rise to doubts as to the contracting party’s ability or willingness to pay, we shall be entitled to provide services only against payment in advance.
The terms for domains and graphical counters are initially valid for one year and are automatically extended for a further year unless notice of termination is given in writing one month prior to expiry. Unless otherwise agreed, the costs for this must be paid in advance.
5. Warranty
The contracting party is responsible for ensuring that the service provided by us complies with civil law, in particular competition law, criminal law and public law, insofar as the contracting party is involved in its design, in particular by providing material or approving proofs. The contracting party must obtain any necessary official approvals. The contracting party is obliged to inspect the service upon delivery or presentation and to report any defects. This applies mutatis mutandis to proofs.
Any other defects must also be reported to us without delay, provided that they are to be rectified.
If the rectification of a defect fails, or if we allow a reasonable grace period to elapse without carrying out the rectification, the contracting party may demand a reduction in the remuneration or the rescission of the contract.
Warranty claims are available only to the contracting party and are not assignable.
Warranty periods commence upon delivery of the service.
The risk passes to the customer when the customer is in a position, without our influence, to modify the services provided by us. In the case of the creation or design of a website hosted on our server, this would be upon handover of the FTP access details.
6. Compensation
The contracting party shall only be entitled to claims for damages arising from breach of contract, tort or non-performance if the damage is attributable to wilful misconduct or gross negligence on our part.
Liability shall be limited to the amount of the contract sum.
7. Rights of Use
The client’s right to use services protected by copyright, trade mark law or other forms of protection is always limited to one-off use. Unless otherwise agreed, designs intended for use on the internet may remain accessible online without any time limit.
We are entitled to include an imprint in a style appropriate to the work, or our logo or our name, in our services. The contracting party is obliged to state our logo or our name on every occasion the work is used. At our request, the author must also be named in accordance with Section 13 of the Copyright Act.
The work may only be used for the agreed purpose and in the agreed manner. Should the contracting party make any alterations to our work – in particular to texts, images, film and audio material – they must notify us of such alterations without delay so that we may decide whether our logo and our name should appear.
8. Confidentiality, Data Protection
All documents, data and information provided to us by the contracting party are non-confidential, unless the contracting party designates them as confidential. If we engage third parties to carry out a delivery or provide a service, we may in any case pass on the customer’s data to them, insofar as this is necessary to fulfil the purpose of the contract.
Any documents, data and information provided by us to the customer must be kept confidential, in particular passwords and other information that enables or facilitates the use of our services. At our request, the persons granted access to this information must be agreed upon jointly.
9. Applicable law, contract language, place of jurisdiction, partial invalidity
These Terms and Conditions and all legal relationships between the parties are governed by German law. The language of the contract is German.
If the contracting party is a registered trader, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be Munich.
The invalidity of any provision in these terms and conditions or of any other provision agreed between the parties shall not affect the validity of the remaining provisions of these General Terms and Conditions. The parties are obliged to replace the invalid provisions with valid provisions that come as close as possible to the meaning of the invalid provisions.
10. Special provisions for server services
The storage space leased by us shall be available on average 99 per cent of the time over the course of a year. Unless otherwise agreed, availability of 24 hours a day, 7 days a week, subject to the aforementioned restriction, shall be deemed to have been agreed.
Our instructions for use must always be observed.
The contracting party is not authorised to use our servers for illegal activities.
The contracting party must not store any data prohibited in Germany on our storage space, nor link to such data via a free short URL.
We are not, in principle, responsible for the content of websites linked to via free short URLs (Name.2XS.net).
We do not check the data provided by the contracting party and stored on the available storage space, including links and emails. The contracting party bears sole responsibility for the content of this data. The contracting party shall indemnify us against all claims by third parties that may arise from the content, in particular in the event of an infringement of copyright, trade mark, company name and personal name rights, as well as the breach of criminal and administrative penalty provisions. Should the contracting party face claims arising from a breach of legal provisions, they must inform us immediately.
If we are held liable by third parties due to the content of data originating from the contracting parties and stored on our server, the contracting party is obliged, upon request, to provide without delay all information necessary for the assessment of the claims asserted. If the claims asserted by third parties or the suspicion of criminal or administrative offence-related content are not manifestly unfounded, we are entitled to temporarily block the contracting party’s storage space or, where technically possible and reasonable, the content in question, if the contracting party fails to provide us with the aforementioned information within a reasonable period. We are entitled to block access in any event if the data originating from the contracting party and stored on our server contains material that infringes the rights of third parties or breaches criminal or administrative offence provisions, or if an enforceable court order so requires.
The right to block access in accordance with the above provision applies in the event of an infringement of the law of the Federal Republic of Germany. In the event of an infringement of foreign laws, the above provision shall apply until the contracting party has ensured that the infringement is prevented by taking appropriate measures to restrict access to the data.
The contracting party is responsible for the trouble-free operation of its own equipment, in particular PCs and cables. It shall ensure that its equipment does not impair the functioning of our equipment. If there is any suspicion that the contracting party’s equipment may impair the functioning of our equipment, the contracting party shall have its equipment inspected by us, at its own expense, or by a specialist firm, and shall ensure that such impairments are ruled out.
Unless otherwise agreed, technical faults shall be forwarded by us to the server operator. We shall not be held liable for disruptions to server functionality due to force majeure, in particular network disruptions, strikes, lockouts, official orders, etc., even if these occur at our suppliers’ premises, their subcontractors’ premises or our access provider’s premises. If the disruption lasts for more than 2 weeks, the contracting party shall be entitled to terminate the contract after setting a reasonable grace period.
Necessary service interruptions for maintenance work, restructuring and repairs will, where possible, be announced in advance and scheduled between 3 am and 6 am.
The contracting party shall ensure that personal data is processed using the storage space provided by us in compliance with the provisions of the Teleservices Data Protection Act, the Federal Data Protection Act and other data protection regulations. The contracting party shall indemnify us against all claims by third parties arising from the unlawful processing of personal data by the contracting party.
However, we reserve the right to terminate offers of virtual servers and webspace with four weeks’ notice without further justification.
11. Special provisions for deliveries
(1) Return
Goods and equipment intended for the production of copies, such as negatives, print templates, master tapes, and optical and magnetic storage media, such as CD-ROMs and computer diskettes, are made available to the contracting party solely on loan and must be returned to us immediately upon completion of the copying process. There is no obligation to provide these goods and devices.
(2) Delivery periods
The delivery period and delivery date shall be in accordance with our agreements. If, after the conclusion of the contract, changes to the content or scope of the delivery are agreed, the delivery period for the entire delivery shall recommence.
The delivery date or delivery period shall be deemed to have been met if the service has been performed on time.
A reasonable extension of delivery periods or delivery dates shall apply if we are unable to deliver due to industrial action, in particular strikes and lockouts, force majeure, war or natural disasters, a lack of or defective supply to us, or in the event of other unforeseen obstacles for which we are not responsible.
If these circumstances result in an impediment to performance that is not merely temporary, we shall be entitled to withdraw from the contract. If the impediment lasts for more than 2 months, the client shall be entitled to withdraw from the contract in respect of the part not yet fulfilled.
(3) Retention of title
Ownership of the service provided, provided it is not merely hired out, shall only pass to the contracting party upon full payment.
Yours faithfully, FSnD
buetefuer(at)fsnd.net
Friedrich Buetefuer
Heidelbergerstrasse 10
80804 Munich, Germany
