General Terms and Conditions

Table of contents

1. Scope of application
2. Services of the provider
3. Changes to services
4. Conclusion of contract
5. Obligations of the customer
6. Remuneration and terms of payment
7. Duration and termination of the contract
8. Liability
9. Amendment of the GTC
10. Applicable law, place of jurisdiction

1) Scope of application

1.1 These General Terms and Conditions (hereinafter “GTC”) of HostPress GmbH (hereinafter “Provider”) shall apply to all contracts concluded by an entrepreneur (hereinafter “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 rejected, unless otherwise agreed.

1.2 These GTC shall also apply exclusively if the Provider performs the service for the Customer without 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 that is exercising its commercial or independent professional activity when concluding a legal transaction.

1.4 Entrepreneurs within the meaning of these GTC are also public authorities or other organisations under public law if they act exclusively under private law when concluding a contract.

2) Services of the provider

2.1 The Provider provides services for making content accessible via the Internet. For this purpose, the Provider provides the Customer with system resources on a virtual server. The customer can store content on this server up to a certain amount. The exact scope results from the service description of the provider.

2.2 The content is made available on the server under an Internet domain assigned to the customer for retrieval via the Internet. The provider’s services for the transmission of data are limited solely to data communication between the transfer point of the provider’s own data communication network operated by the provider and the server provided for the customer. It is not possible for the provider to influence data traffic outside its own communications network. Successful forwarding of information from or to the computer requesting the content is therefore not owed in this respect.

2.3 The provider’s online service is offered subject to availability. A 100 per cent availability cannot be technically realised and therefore cannot be guaranteed to the customer by the provider. However, the provider endeavours 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 to public communication networks, power failures, etc.) may lead to disruptions or temporary shutdown of the Service.

2.4 The Provider shall provide the aforementioned services with an overall availability of at least 99.5%.

The availability is calculated on the basis of the time allotted to the respective calendar month in the contract period minus the maintenance times. As far as possible, the provider shall carry out maintenance work during periods of low utilisation.

2.5 The contents of the storage space intended for the Customer shall be regularly backed up by the Provider. Details on the frequency and procedure of the backup can be found in the provider’s service description. The customer is not entitled to the return of any of the backup media, but only to the retransfer of the backed-up content to the server.

2.6 The Provider is authorised to adapt the hardware and software used to provide the services to the current state of the art. If such an adaptation results in additional requirements for the content stored by the customer on the server in order to guarantee the provision of the provider’s services, the provider shall inform the customer of these additional requirements in good time. In this case, the customer must 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 fails to notify the provider of this 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 desired Internet domain(s). The Provider assumes no liability for 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) for the Customer. If the desired domain(s) is/are no longer available, the provider shall inform the customer immediately and submit up to three alternative proposals that come as close as possible to the originally desired domain. The customer must then decide in favour of one of the alternative proposals within a reasonable period set by the provider. If the customer allows the reasonable deadline set by the provider to elapse without success, the provider is authorised to select a domain for the customer. The provider is not responsible for obtaining rights to domains already registered for third parties by the responsible registry. The integration of an external domain that is administered 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 registry and when negotiating the conditions, the provider must independently safeguard the customer’s financial interests and use his expertise to serve the customer. Upon request, the provider shall provide the customer with information and account for the status and progress of his endeavours in this matter at any time. All rights and naming rights acquired in the domain belong to the customer.

3) Changes to services

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,

• insofar as it is obliged to do so due to a change in the legal situation;
• insofar as it thereby complies with a court judgement or an official decision directed against it;
• if 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 with no significant impact on the customer.

3.3 Changes with only an insignificant influence 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 mere changes to the arrangement of functions.

4) Conclusion of contract

4.1 The services described on the provider’s website do not constitute binding offers on the part of the provider, but serve to submit a binding offer by the customer.

4.2 The customer can submit the offer via the online order form provided on the provider’s website. After entering their personal data, the customer submits a legally binding contract offer for the selected services by clicking the button that concludes the order process. Furthermore, the customer can also submit the offer to the seller by e-mail.

4.3 The vendor 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 e-mail), whereby the receipt of the order confirmation by the customer is decisive in this respect, or
• by requesting payment from the customer after the order has been placed.

If several of the aforementioned alternatives exist, 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 shall be deemed 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 offer is sent by the customer 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 text of the contract is saved by the provider after the contract is concluded and sent to the customer in text form (e.g. email, fax or letter) after the customer’s order has been sent. The provider will not make the text of the contract 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 entering the corresponding login data.

4.6 Before binding submission of the order via the Provider’s online order form, the Customer can correct his entries on an ongoing basis using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual keyboard and mouse functions.

4.7 Only the German language is available for the conclusion of the contract.

4.8 Order processing and contact are generally carried out by 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 the e-mails sent by the provider 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 content stored by the customer on the storage space intended for him may be protected by copyright and data protection laws. The customer grants the provider the right to make the content stored by him on the server accessible via the Internet in the event of queries, in particular to reproduce and transmit it for this purpose and to be able to reproduce it for the purpose of data backup. The customer is responsible for checking whether the use of personal data by him fulfils 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 shall also ensure that programmes, scripts or similar installed by him do not endanger the operation of the server or the provider’s communication network or the security and integrity of other data stored on the provider’s servers.

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. The customer shall assume the costs of the necessary legal defence, including all court and lawyer’s fees to a reasonable amount. This does 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 necessary for the examination of the claims and a defence.

5.4 In the event of an imminent or actual breach of the above obligations and in the event of the assertion of not obviously unfounded claims by third parties against the provider based on the content stored on the server, the provider is entitled, 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, etc. installed by the customer endanger or impair the operation of the provider’s server or communication network or the security and integrity of other data stored on the provider’s servers, the provider may deactivate or uninstall these programmes, scripts, etc. If the customer fails to do so, the provider shall be entitled to terminate the contract. If the elimination of the threat or impairment requires this, the provider is also authorised 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 shall receive 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 persons authorised by the customer to access the storage space.

6) Remuneration and terms of payment

6.1 Unless otherwise stated in the Provider’s offer, the prices quoted are net prices plus statutory VAT.

6.2 The remuneration for the Provider’s services 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 be 1/30 of the agreed amount for each day following the activation.

6.3 The fee shall be debited monthly from the customer’s bank account by direct debit. The customer shall issue the provider with a direct debit mandate (SEPA) that can be cancelled at any time. 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 although 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.

6.4 The provision of services by the Provider is conditional on the Customer meeting its payment obligations on time. If the customer is in arrears with 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.

7) Duration and termination of the contract

7.1 The contract is concluded for an indefinite period, but at least for a period of one year (minimum term). During the minimum term, the contract can be cancelled with a notice period of three months to the end of the minimum term. If the contract is not cancelled in due time, it shall be extended by a further year and can then be cancelled again with a notice period of three months to the end of the respective contract term.

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

7.3 Cancellations must be made in writing or in text form (e.g. by e-mail).

7.4 After termination of the contractual relationship, the Provider shall make the content stored on the storage space intended for the Customer available to the Customer on a data carrier. Any rights of retention of the Provider shall remain unaffected.

8) Liability

8.1 If, in providing telecommunications services to the public, the Provider negligently violates the Telecommunications Act, an ordinance issued on the basis of this Act, an obligation imposed in an allocation on the basis of this Act or an order of the Federal Network Agency, liability to the Customer for financial losses shall be limited in accordance with § 44a TKG.

8.2 Otherwise, the Provider shall be liable for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:

8.2.1 The Provider shall be liable without limitation for any legal reason

• in the event of wilful intent or gross negligence,
• in the event of wilful or negligent injury to life, limb or health,
• on the basis of a guarantee promise, unless otherwise regulated in this respect,
• due to mandatory liability such as under the Product Liability Act.

8.3 If the Provider negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical of the contract, unless liability is unlimited in accordance with the above clause. Essential 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 execution of the contract possible in the first place and on the observance of which the customer may regularly rely.

8.4 Any further liability of the provider is excluded.

8.5 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 giving reasons, unless this is unreasonable for the Customer. The Provider shall notify the Customer of 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 to have been accepted by the customer. In the notification, the provider shall draw the customer’s attention to his right of objection and the significance of the objection period. If the customer objects to the changes within the aforementioned period, the contractual relationship shall continue to exist under the original conditions.

9.2 The Provider also reserves the right to amend these GTC,

• insofar as it is obliged to do so due to a change in the legal situation;
• insofar as it thereby complies with a court judgement or an official decision directed against it;
• if it introduces additional, entirely new services, services or service elements that require a service description in the GTC, unless the existing user relationship is adversely changed as a result;
• 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 by this.

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 acts 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 provider. If the customer is domiciled outside the territory of the Federal Republic of Germany, the place of business of the provider shall be 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 place of business.