Table of contents
1. scope of application
2. services of the provider
3. changes in services
4. conclusion of contract
5. obligations of the customer
6. remuneration and terms of payment
7. duration and termination of the contract
9. amendment of the general terms and conditions
10. applicable law, place of jurisdiction
1) Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) of Maik Daniel, trading as “Hostbox.io” (hereinafter referred to as the “Provider”), shall apply to all contracts concluded by an entrepreneur (hereinafter referred to as the “Customer”) with the Provider with regard to 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 GTC also apply exclusively if the Provider performs the service for the Customer without any special reservation in the knowledge that the Customer’s terms and conditions conflict with or deviate from these GTC.
1.3 An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
1.4 For the purposes of these GTC, an entrepreneur is also a public authority or other institution under public law if, when concluding the contract, it is acting exclusively in accordance with private law.
2) Services of the Provider
2.1 The Provider provides services for making content available via the Internet. For this purpose, he provides the customer with system resources on a virtual server. The customer may store content on this server up to a certain extent. The exact scope results from the service description of the provider.
2.2 On the server, the contents are made available for retrieval via the Internet under an Internet domain assigned to the customer. The services of the Provider in the transmission of data are limited solely to the data communication between the transfer point of the Provider’s own data communication network to the Internet and the server provided for the Customer. It is not possible for the provider to influence data traffic outside its own communications network. A successful forwarding of information from or to the computer retrieving the content is therefore not owed in this respect.
2.3 The Provider’s online service is offered subject to availability. An availability of 100 percent cannot be realised technically and can therefore not be guaranteed to the customer by the provider. However, the Provider shall endeavour to keep the service available as constantly as possible. In particular, maintenance, security or capacity issues as well as events beyond the control of the Provider (disruptions of public communication networks, power failures, etc.) may lead to disruptions or temporary shutdown of the Service.
2.4 The Provider provides the aforementioned services with an overall availability of 99.9% as an annual average.
The availability is calculated on the basis of the time allotted to the respective calendar month in the contractual period minus the maintenance times. As far as possible, the Provider shall carry out the maintenance work during periods of low use.
2.5 The contents of the storage space designated for the Customer shall be backed up by the Provider on a regular basis. Details on the frequency and procedure of the back-up can be found in the Provider’s service description. The customer has no claim to the surrender of any of the backup media, but only to the retransfer of the backed-up contents to the server.
2.6 The Provider is entitled to adapt the hardware and software used to provide the services to the respective state of the art. If, as a result of such an adaptation, additional requirements arise for the content stored by the customer on the server in order to guarantee the provision of the services of the provider, the provider shall inform the customer of these additional requirements in good time. In this case, the Customer shall inform the Provider no later than four weeks before the changeover date whether it will adapt its content to the additional requirements in good time – i.e. no later than three working days before the changeover date. If the Customer refuses to adapt its content or does not declare this to the Provider within the aforementioned period, the Provider may terminate the contractual relationship with effect from the changeover date.
2.7 The Provider shall also procure the Internet domain(s) under which the Customer’s content is to be made available. For this purpose, the Customer shall name the Internet domain(s) desired by him. The Provider does not guarantee the availability of the desired domain(s) or the non-violation of third-party rights (e.g. name, trademark or title rights) by registering the desired domain(s) with the Customer. In the event that the desired domain(s) should no longer be available, the Provider shall notify the Customer thereof without delay and submit to the Customer up to three alternative proposals that come as close as possible to the originally desired domain. The customer must then decide on one of the alternative proposals within a reasonable period set by the Provider. If the customer allows the reasonable period of time set by the Provider to expire fruitlessly, the Provider shall be entitled to select a domain for the customer. The Provider shall not be responsible for obtaining rights to domains already registered for third parties by the responsible registry. The integration of an external domain administered by another provider is not permitted. The Provider shall register the domain in the name and for the account of the Customer. In particular in the selection of the domain name and the registry as well as in the negotiations on the conditions, the provider shall independently safeguard the financial interests of the customer and use his expertise in the service of the customer. The provider shall provide the customer with information and account for the status and progress of its undertakings in this matter at any time upon request. All rights and rights to the name acquired in the domain shall remain with the customer.
3) Changes in performance
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 thereby complies with a court ruling or an official decision directed against him;
- insofar as the respective change is necessary to close existing security gaps;
- if the change is merely advantageous 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 with only an insignificant impact on the Provider’s services do not constitute changes to services within the meaning of this clause. This applies in particular to changes of a purely graphical nature and the mere change in the arrangement of functions.
4) Conclusion of contract
4.1 The services described on the website of the Provider do not constitute binding offers on the part of the Provider, but serve for the submission of a binding offer by the Customer.
4.2 The customer can submit the offer via the online order form provided on the website of the provider. In doing so, after entering his personal data, the customer submits a legally binding contractual offer with regard to the selected services by clicking the button that concludes the ordering process. Furthermore, the customer can also submit the offer to the seller by e-mail, fax or post.
4.3 The Vendor may 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 e-mail), in which case the receipt of the order confirmation by the customer is decisive, or
- by requesting payment from the customer after the customer has placed his order.
If several of the aforementioned alternatives exist, the contract shall be concluded at the time when one of the aforementioned alternatives occurs first. The period for acceptance of the offer begins on the day after the customer sends the offer and ends with the expiry of the fifth day following the sending of the offer. If the Provider does not accept the Customer’s offer within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the Customer is no longer bound by his declaration of intent.
4.4 The period for accepting the offer begins on the day after the customer sends the offer and ends with the expiry of the fifth day following the sending of the offer.
4.5 When an offer is made via the Provider’s online order form, the text of the contract is stored by the Provider after the conclusion of the contract and transmitted to the Customer in text form (e.g. e-mail, fax or letter) after the Customer has sent his order. The provider does not make the text of the contract accessible 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 corresponding login data.
4.6 Before bindingly placing the order via the Provider’s online order form, the Customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better recognition of input errors can be the enlargement function of the browser, with the help of which the display on the screen is enlarged. The customer can correct his entries during the electronic ordering process using the usual keyboard and mouse functions until he clicks the button which completes the ordering process.
4.7 Only the German language is available for the conclusion of the contract.
4.8 Order processing and contacting usually take place via e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct so that e-mails sent by the supplier can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the provider or by third parties commissioned by the provider to process the order can be delivered.
5) Obligations of the customer
5.1 The contents stored by the customer on the storage space designated for him may be protected by copyright and data protection law. The customer grants the provider the right to make the contents stored by him on the server accessible in the event of queries via the Internet, in particular to reproduce and transmit them for this purpose and to be able to reproduce them for the purpose of data backup. The customer shall check on his own responsibility whether the use of personal data by him meets the requirements of data protection law.
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. Furthermore, the customer shall ensure that programs, scripts or similar installed by him do not endanger the operation of the server or the communication network of the provider or the security and integrity of other data stored on the servers of the provider.
5.3 The Customer shall indemnify the Provider against all claims asserted by third parties against the Provider for infringement of their rights due to content stored by the Customer on the server. In this respect, the customer shall bear the costs of the necessary legal defence, including all court costs and lawyers’ fees to a reasonable amount. This shall not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obliged to provide the provider immediately, truthfully and completely with all information required for the examination of the claims and a defence.
5.4 In the event of an imminent or actual breach of the above obligations, as well as in the event of the assertion of not obviously unfounded claims by third parties against the Provider on the basis of the content stored on the server, the Provider shall be entitled, also taking into account the legitimate interests of the Customer, to temporarily suspend the connection of this content to the Internet in whole or in part with immediate effect. The Provider shall inform the Customer of this measure without delay.
5.5 If programmes, scripts or similar installed by the customer endanger or impair the operation of the server or the communication network of the provider or the security and integrity of other data stored on the servers of the provider, the provider may deactivate or uninstall these programmes, scripts etc.. If the elimination of the threat or impairment so requires, the provider is also entitled to interrupt the connection of the content stored on the server to the Internet. The Provider shall inform the Customer of this measure without delay.
5.6 For access to 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 those persons who have been authorised by him to access the storage space.
6) Remuneration and terms of payment
6.1 Unless otherwise stated in the offer of the Provider, the prices quoted are net prices which are subject to the statutory value added tax.
6.2 The remuneration for the services of the Provider shall 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 remuneration begins with the activation of the storage space by the Provider. For the month in which the initial activation takes place, the remuneration shall amount to 1/30 of the agreed amount for each day following the activation.
6.3 The provision of the services by the Provider is conditional upon the Customer meeting his payment obligations on time. If the customer is in arrears with the payment of a not insignificant part of the remuneration owed for two consecutive months, the Provider may terminate the contractual relationship for good cause without observing a notice period.
6.4 The payment options and the payment modalities shall be communicated to the customer on the website of the Provider.
6.5 If prepayment by bank transfer has been agreed, payment is due immediately after conclusion of the contract, unless the parties have agreed a later due date.
6.6 If the payment method “SEPA Direct Debit” is selected, the payment will be processed via the payment service provider GoCardless Ltd, Sutton Yard, 65 Goswell Road, London, EC1V 7EN, United Kingdom (hereinafter: “GoCardless”). In this case, GoCardless will collect the invoice amount from the customer’s bank account after issuing a SEPA direct debit mandate, but not before the expiry of the pre-notification period on behalf of the seller. Pre-notification is any communication (e.g. invoice, policy, contract) to the customer announcing a debit by SEPA Direct Debit. If the direct debit is not honoured due to insufficient funds in the account or due to the provision of incorrect bank details, or if the customer objects to the direct debit even though he is not entitled to do so, the customer shall bear the fees incurred by the respective credit institution as a result of the chargeback if he is responsible for this. The Seller reserves the right to carry out a creditworthiness check when selecting the SEPA direct debit payment method and to reject this payment method in the event of a negative creditworthiness check.
7) Duration and termination of the contract
7.1 The contract is concluded for an indefinite period, but at least for the duration of one month (minimum term). During the minimum term, the contract may be terminated with one month’s notice to the end of the minimum term. If the contract is not terminated in due time, it shall be extended for an indefinite period and may then be terminated at any time with one month’s notice.
7.2 The right to extraordinary termination for good cause remains unaffected. Good cause shall be deemed to exist if the terminating party, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the expiry of a notice period.
7.3 Notice of termination shall be given in writing or in text form (e.g. by e-mail).
8.1 The Provider shall be 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 limitation for any legal reason
- in the event of intent or gross negligence,
- in the event of intentional or negligent injury to life, limb or health,
- on the basis of a guarantee promise, insofar as nothing else is regulated in this respect,
- on the basis of mandatory liability such as under the Product Liability Act.
8.2 If the Provider negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited in accordance with the preceding clause. Material contractual obligations are obligations which the contract imposes on the Provider according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place and compliance with which the Customer may regularly rely on.
8.3 In all other respects, liability on the part of the Provider is excluded.
8.4 The above liability provisions shall also apply with regard to the liability of the Provider for its vicarious agents and legal representatives.
9) Amendment of the GTC
9.1 The Provider reserves the right to amend these GTC at any time without stating reasons, unless this is unreasonable for the Customer. The Provider shall notify the Customer of any changes to the GTC in text form in good time. If the customer does not object to the validity of the new GTC within a period of four weeks after notification, the amended GTC shall be deemed accepted by the customer. In the notification, the provider shall inform the customer of his right to object and the significance of the objection period. If the customer objects to the amendments within the aforementioned period, the contractual relationship shall continue to exist under the original terms and conditions.
9.2 Furthermore, the Provider reserves the right to amend these GTC,
- if he is obliged to do so due to a change in the legal situation;
- to the extent that he thereby complies with a court ruling or an official decision directed against him;
- to the extent that it introduces additional, entirely new services, services or service elements which require a description of services in the GTC, unless the existing user relationship is adversely affected thereby;
- if the change is merely advantageous 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 to terminate the contract in accordance with clause 7 remains unaffected.
10) Applicable law, place of jurisdiction
10.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties.
10.2 If the customer is acting as a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of the supplier.