General terms and conditions for web hosting
§ 1 Subject matter of the contract
(1) The Provider shall provide the Customer with web space, i.e. storage space on a so-called shared server. The amount in MB depends on the offer on which this contract is based. For this purpose, the Provider shall take over the regular monitoring of the servers.
(2) The Provider shall ensure that the Customer has the possibility of regular access to the server. For this purpose, the Provider shall assign a user name and a password to the Customer, with which the Customer can independently save, change, add to or delete its Internet pages by means of data transfer. For security reasons, the Provider shall also give the Customer the opportunity to change his password.
(3) The Provider owes an effort to ensure that the data (website) stored by the Customer in accordance with the contract can be accessed by the public around the clock worldwide in the World-Wide-Web. The provider assumes no responsibility for the success of the respective access to the website. In particular, the provider has no influence on the technology at the customer or at the data center where the server is located, nor on the connections in between.
§ 2 Server speed and availability
(1) The web server is operational 24 hours a day, seven days a week with an annual average availability of 99.86%. Excluded from this are downtimes due to maintenance and software updates as well as times in which the web server cannot be reached via the Internet due to technical or other problems that are beyond the control of the Provider (force majeure, fault of third parties, etc.). If it is foreseeable for the Provider that downtimes for maintenance and software updates will last longer than three hours, the Provider shall notify the Customer of this at least three days before the start of the respective work.
(2) If the content of the web server is not available for users and if this is due to the fault of the Provider, the Provider shall owe a contractual penalty in the amount of 1/3 of the owed monthly base fee without taking into account the data traffic volume for each day on which the availability is down for more than 12 hours. The payment obligation is limited to 10 days per year. The contractual penalty shall not be forfeited if the Provider proves that it is not at fault. Other claims of the customer remain unaffected.
§ 3 Obligations of the customer
(1) In case of malfunctions during the use of the server, the Customer shall immediately inform the Provider about these malfunctions.
(2) The customer is obligated to keep all access data, especially the access data to his e-mail accounts and the access data to Concrete5 installations secret from unauthorized third parties. Furthermore, all forms shall be securely encrypted by the Customer. For this purpose the customer has to use sufficiently long and correspondingly secure passwords.
In particular, user name and password shall be kept in such a way that access to these data by unauthorized third parties is impossible in order to exclude misuse of the access by third parties. The Customer undertakes to inform the Provider immediately as soon as he becomes aware that unauthorized third parties are aware of the password.
(3) Unauthorized third parties shall not include persons who use the storage space that is the subject of this Agreement with the knowledge and will of the Customer, provided that the Customer is liable for their actions in accordance with the statutory provisions.
(4) The customer assures that he will not store any content on the storage space that is the subject of this contract and place it on the Internet, the provision, publication and use of which violates criminal law, copyrights, trademark and other labeling rights or personal rights. For each case of culpable violation of the above obligation, the customer promises to pay a contractual penalty in the amount of 2,500.00 €. In addition, a violation of the customer against the above obligations entitles the provider to extraordinary termination.
(5) The Customer is prohibited from sending so-called SPAM mails to third parties. This applies in particular to the sending of mass messages to natural persons and/or legal entities under private and/or public law. The Customer may only send newsletters or other e-mails with advertising content to third parties if all legally prescribed conditions for this are complied with, such as, for example, the existence of an express written consent of the addressee to the sending of advertising e-mails.
(6) If the Customer violates its obligations under § 3 of this Agreement, it shall be obligated to refrain from further violations, to compensate the Provider for any damage incurred and still to be incurred, and to indemnify and hold the Provider harmless from any claims for damages and reimbursement of expenses of third parties caused by the violation upon first request. The indemnification obligation also includes the obligation to fully indemnify the Provider from legal defense costs (court and attorney fees, etc.). Other claims of the Provider, in particular to block the content and to terminate the contract for cause, shall remain unaffected.
§ 4 Temporary blocking
(1) The provider is entitled to temporarily interrupt the connection of the website to the Internet, i.e. for up to ten days (blocking of the website), if there is sufficient suspicion of illegal content on the website as defined in § 3.6. § Section 3 (6), for example due to a warning from the alleged infringer or investigations by state authorities, unless the warning is obviously unfounded.
(2) The blocking shall be limited to the allegedly infringing content, if technically possible and reasonable. The customer shall be notified of the blocking without delay, stating the reasons, and shall be requested to remove the allegedly illegal content or to demonstrate and, if necessary, prove its legality.
(3) The blocking shall be lifted as soon as the suspicion is completely invalidated.
§ 5 Remuneration
(1) The Customer undertakes to pay the Provider a remuneration in the amount of the offer on which the contract is based. The calculation basis for the usage amount is the amount of storage space provided to the customer based on the present contract.
(2) The Provider shall be entitled at any time to increase the hosting costs vis-à-vis a Customer who is a merchant with immediate effect as soon as the Customer has exceeded the contractually agreed maximum storage volume. In such a case, the Provider shall submit a new offer to the Customer corresponding to the changed or then current scope of services.
(3) The Provider shall be entitled to increase the remuneration for its services irrespective of the storage volume used for the first time 6 months after conclusion of the contract. The increase shall be adjusted to the cost increase incurred by the Provider due to the general price development. It shall become effective one month after its notification. The customer may give extraordinary notice of termination for the time it takes effect.
(4) Domain administration
For the administration of domain addresses on behalf of the customer by the provider, the following costs are incurred:
a) Domain administration (annual costs)
.de 12,00 €
.com 15,00 €
.net 15,00 €
.info 17,00 €
.org 15,00 €
.eu 25,00 €
.biz 20,00 €
.at 25,00 €
.ch 30,00 €
The costs for domain administration are the annual recurring amounts. The domain administration can only be billed annually. A billing for periods less than one year is not possible. Even if a domain is cancelled, a year or part thereof will be charged in full.
b) Domain registration (one-time costs)
.de 10,00 €
.com 20,00 €
.net 20,00 €
.info 20,00 €
.org 20,00 €
.eu 20,00 €
.biz 20,00 €
.at 30,00 €
.ch 30,00 €
c) Domain transfer (one-time costs)
.de 20,00 €
.com 20,00 €
.net 20,00 €
.info 20,00 €
.org 20,00 €
.eu 20,00 €
.biz 20,00 €
.at 30,00 €
.ch 30,00 €
§ 6 Method of payment
(1) The Provider shall invoice the Customer for the contractually owed remuneration on a regular basis. The extent to which this is done on a monthly or annual basis depends on the offer underlying this contract. Monthly invoices shall be due for payment two weeks in advance for the respective following month. Annual invoices shall be due for payment one month in advance for the following year.
(2) If the Customer is in default with the payment of due invoices, the Customer shall be obligated to pay default interest, unless the Customer proves that the interest loss incurred by the Provider is lower. The assertion of further default claims by the Provider is not excluded. The amount of interest on arrears shall be 5.0 percentage points above the respective base interest rate for customers who are consumers and 8.0 percentage points above the base interest rate for merchants.
§ 7 Granting of rights
(1) The contents of the Website are protected for the Customer under copyright law (as a work, collective work, database work, computer program, photograph, database, via related ancillary copyrights or as derived rights from the aforementioned rights), art copyright law, trademark law or via other protective rights ("protected contents").
(2) The Customer grants the Provider the non-exclusive right, limited in time to the duration of the contract, non-transferable, limited to the location of the respective server (for backup copies: to the location of their safekeeping), to reproduce the protected contents for the purposes of this contract on the server, on another server used for mirroring and on a sufficient number of backup copies.
(3) The Customer grants the Provider the non-transferable, worldwide, non-exclusive right, limited in time to the term of the Agreement, to make the Protected Content available to the public via the network maintained by the Provider and the Internet connected thereto in such a way that members of the public can access the website from a place and at a time individually chosen by them in each case and can save this data by downloading it from the Provider's server. To the extent that protected content is cached by third parties after termination of the Agreement, such storage shall no longer be attributed to the Provider.
§ 8 Term of contract and termination
(1) The contract shall initially be valid for an initial contract period of one year from the conclusion of the contract. It shall be tacitly renewed for a further year if it is not terminated in writing by one of the contracting parties at the end of the initial or each subsequent contractual period. The period of notice shall be three months.
(2) The right of each contracting party to terminate the contract extraordinarily and without notice in the event of good cause shall remain unaffected. Good cause shall be deemed to exist for the Provider in particular in any case in which
(a) the Customer is in default with the payment of the agreed remuneration for two consecutive dates or the Customer is in default with the payment of the remuneration in a period that extends over more than two dates in an amount that corresponds to the remuneration for two months; (b) the Customer is in default with the payment of the remuneration in a period that extends over more than two dates in an amount that corresponds to the remuneration for two months.
(b) the Customer is insolvent or insolvency proceedings have been instituted against its assets or the application for the institution of insolvency proceedings has been rejected for lack of assets.
insolvency proceedings has been rejected for lack of assets;
(c) the customer violates essential contractual obligations, in particular the contractual obligation to comply with applicable law when using the contractual services of the applicable law when using the contractual services of the Provider, and does not remedy this violation immediately, i.e. within three days, even after a warning or notification of the blocking of the content by the Provider.
(3) Upon termination of the contract, the Customer has a claim against the Provider for surrender of the website. The surrender shall be effected by making the website available for download via FTP access or by copying the website onto a data carrier specified by the customer and handing this data carrier over to the customer.
In the event that a data carrier is handed over to the Customer, the Provider shall be entitled to reimbursement of the material costs to be documented.
§ 9 Transfer of use to third parties
The Customer shall only be entitled to transfer the storage space that is the subject matter of the contract to a third party for use, in part or in full, against payment or free of charge, if the Provider consents in writing to such transfer of use to third parties.
§ 10 Data Privacy
(1) The customer is especially advised of the legal regulations regarding data protection. Xanweb GmbH points out that in the context of the execution of the contract, especially in the registration of domains, also personal data (e.g. name, address) are stored. For the purpose of the execution of the contract these data can also be transmitted to third parties and published in the usual scope for the identification of the owner of the domain (including possible public queries in so-called whois databases).
Furthermore, information will only be made accessible to third parties to the technically necessary extent, as far as this is provided for in internationally recognized technical standards and the customer does not object.
(2) Xanweb GmbH points out to the customer that data protection in data transmission in open networks, such as the Internet, cannot be comprehensively guaranteed according to the current state of the art, especially that due to the structure of the Internet it is possible that data protection is disregarded by other persons and institutions that are not in the area of responsibility of Xanweb GmbH; furthermore, it is possible that a message that should not leave the area of application of the Federal Data Protection Act due to its addressing, nevertheless leaves this area.
(3) Xanweb GmbH also informs customers as a precaution that unencrypted data transmitted over the Internet is not secure and can be accessed and changed by third parties; other participants on the Internet may be technically able to interfere with network security without authorization and to control message traffic. We therefore advise against the unencrypted transmission of personal data or other data requiring confidentiality.
§ 11 Secrecy
(1) Both contracting parties undertake to keep confidential for an unlimited period of time all confidential information which becomes accessible to them in connection with the contractual relationship, in particular such information which, for example, is designated as confidential or is to be regarded as a business or trade secret according to other circumstances, and - unless this is required to achieve the purpose of the contract - neither to record nor to pass on or otherwise exploit such information. In particular, the area of processing, technical aspects and all other information not accessible to the public shall be treated confidentially. Appropriate contractual agreements with employees and/or other agents shall further ensure that they, too, refrain - also for an unlimited period - from any disclosure or other unauthorized use of such confidential information. Confidentiality also includes preventing unauthorized persons from gaining access to the information. The confidentiality obligation shall continue to apply beyond the termination of the contractual relationship.
§ 12 Liability for Defects and Other Defects in Performance
(1) When providing the storage space on the web server, the Provider excludes any strict liability for initial defects of the web server. Subsequent objections due to obvious or hidden defects are thus excluded.
(2) Liability due to interruption, malfunction or other events causing damage, which are based on telecommunication services of the Provider or third parties for which the Provider is liable, is limited to the amount of recourse possible for the Provider against the respective telecommunication service provider. The Provider shall not be liable for the operability of the telephone lines to the server that is the subject of the contract, in the event of power failures and in the event of failures of servers that are not within its sphere of influence.
(3) The Provider shall only be liable for any damages, regardless of the legal grounds, if it culpably violates a material contractual obligation (cardinal obligation) in a manner that endangers the purpose of the contract or if the damage is due to gross negligence or intent.
(4) The limitation of liability shall also apply in the event of fault on the part of a vicarious agent of the Provider.
(5) If the breach of a material contractual obligation (cardinal obligation) is not due to gross negligence or intent, the liability of the Provider shall be limited to such typical damage or such typical extent of damage that was reasonably foreseeable at the time the contract was concluded.
§ 13 Final provisions
(1) German law is exclusively applicable to this contract.
(2) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Erfurt, provided the customer is a merchant. The Provider shall remain entitled to file suit or initiate other legal proceedings at the Customer's general place of jurisdiction.
(3) This agreement represents the entire regulation of the subject matter of the contract. Subsidiary agreements have not been made. Amendments or supplements to this agreement must be made in writing. This shall also apply to any provision waiving this written form requirement.