General Terms and Conditions of myloc managed IT AG

Transcription

1 General Terms and Conditions of myloc managed IT AG 1 Scope The following General Terms and Conditions(AGB) govern the contractual relationship between myloc managed IT AG, Am Gatherhof 44, Düsseldorf (hereinafter myloc ) and natural or legal persons who use the services provided by myloc (hereinafter: customer ). The version in force at the time the contract is concluded is authoritative. The contract language is German. 2 Services Provided by myloc 1. myloc operates high tech facilities in the property Am Gatherhof 44, Düsseldorf that are connected to the internet. In these facilities, myloc offers the customer the following hosting and housing services: 1. Co-location/IT-Housing: myloc provides the customer with assigned space (rack or cage) for the customer s own hardware as well as an internet connection. 2. Customized Managed Hosting: The customer will use individually configured servers provided by myloc. 3. Server Hosting: The customer will use myloc s dedicated or virtual servers. 4. Gameserver: The customer will use Gameserver, which is operated by myloc. 5. Domains: The customer will use Domain Services from myloc. 6. Additional services on request. 2. myloc guarantees server availability of 99 % averaged annually. myloc also has a maintenance window for performing maintenance work. Maintenance is usually performed at night between 22:00 and 06:00 hours. This type of maintenance is excluded from the guaranteed availability. Also excluded are times in which the servers are unavailable due to problems lying beyond myloc s control (network outages outside of the networks belonging to myloc, force majeur, culpable acts of third parties, etc). Separate rules regarding availability can be arranged in individual agreements with the customer in Service Level Agreements (SLA). 3. myloc provides no guarantee for the amount of bandwidth available. 4. myloc is entitled to provide services through third parties. 5. In providing Domain Services as defined 2 (1) lit.e of these General Terms and Conditions, myloc acts simply as an agent between the customer and the office responsible for registering domain names. The domain names will be registered in the name of the customer. 6. In providing domain-services in the sense of 2 (1) lit.e of these General Terms and Conditions, myloc assumes no guarantee for assigning the domain name desired by the customer. This likewise applies to the constitution of the domain. Most specifically, myloc assumes no guarantee that the desired domain will be unencumbered by the rights of third parties. The customer him/her-self must review for any possible conflict with third party rights before contracting myloc to register the domain. 3 Customer s Duties 1. myloc will bill the customer for services monthly in advance. The price figures include the currently applicable legally mandated VAT. The billed amount is due five days after receipt of the billing statement, without any discount. Billing statements will be sent solely by . Should the customer need a billing statement sent via postal service, an additional processing fee of 3.50 Euros per statement will be assessed. At the request of the customer or at myloc s demand, other billing intervals and methods of payment can be selected. 2. To claim the services described under 2 (1) lit.f of these General Terms and Conditions, specific billing modalities apply which can be viewed on the website under the menu point Services. 3. The customer is obligated to provide myloc with a correct and valid postal address when entering into a contractual agreement with myloc. The customer is obligated to keep these data complete and up-todate. 4. The customer is obligated to grant myloc authorisation to collect the payments due at the conclusion of the contract. In the event that the account specified by the customer does not have an adequate

2 balance or the customer does not fulfil the customer s payment obligations for other reasons, the customer will be liable for default interest in the amount of ten percent annually. The right to demonstrate lower damages remains reserved to the customer. 5. In the event of a charge back myloc will charge a processing fee in the amount of Euro. The right to demonstrate lower damages remains reserved to the customer. 6. The customer is obligated with reference to the content the customer publishes, to fulfil its duty to identify him/her-self as the publisher as stated in 5 TMG [German Telemedia Act] and 55 RStV [German Radio Communications Act]. The customer must inform him/her-self concerning other possible informational obligations incumbent upon him/her. 7. The customer is obligated to design the customer s content in compliance with the law. The customer is especially obligated to refrain from providing illegal content. 8. The customer is obligated, to refrain from using the servers provided to him/her or the servers the customer installed by himself in myloc s facilities for illegal purposes, especially file sharing, portscanning, MAC-modifications as well as distributed Denial of Service-attacks. 9. The customer is obligated, to carry out regular data storage outside of the myloc-network. 10. The customer is obligated, to refrain from sending s to third parties who have not consented to receipt beforehand or whose consent to receive cannot be inferred from other means. This likewise applies to sending postings in chats and/or forums. The customer promises to pay myloc a contractual penalty in the amount of 5, Euro per incident in the event of culpable breach of this obligation under exclusion of the assumption of repeated offence. /li> 11. The customer is obligated, to treat all passwords communicated to him/her for the fulfilment and use of the specified contractual obligations with strict confidentiality. 12. If the customer makes use of co-location/it-housing-services in the sense of 2 (1) lit.a of these General Terms and Conditions, the customer is obligated to demonstrate liability insurance coverage under which personal, property and asset losses are insured to a value of at least one million Euros. The customer also expressly recognises that the equipment the customer installs is not insured by myloc and that the customer is solely responsible for adequately insuring his equipment. 13. If the customer makes use of co-location/it-housing-services in the sense of 2 (1) lit.a of these General Terms and conditions, the customer is strictly solely responsible for the operation and maintenance of the customer s Servers, unless the customer makes use of special services from myloc as defined in 2 (2) of these General Terms and Conditions. 14. If the customer makes use of Domain Services as defined in 2 (1) lit.e of these General Terms and Conditions, the customer declares expressly on commissioning myloc for domain registration, that the desired domain does not infringe on the rights of any third parties. 15. If the customer makes use of Domain Services as defined in 2 (6) of these General Terms and Conditions, the customer is obligated toward myloc to inform myloc immediately of any legal disputes arising on the basis of the domain registered and delegated by myloc and especially in the event that the accusation is advanced that the customer s use infringes on the rights of third parties. In this case, myloc is already authorised even before the start of contract to waive the use of the disputed domain and/or block him/her from third-party access pending clarification of the rights. This rule applies analogously to the contents downloadable from the domain, especially in cases of copyright violations. 4 Conclusion of Contact 1. The contract comes into being through myloc providing services to the customer. myloc has the right to refuse customer orders without providing an explanation. 2. Notwithstanding 4 (1) of these General Terms and Conditions, the contract comes into being in the case of a contract for hosting and/or Co-location/IT-Housing-services through myloc s sending the passwords and unlocking the server.

3 5 Notification of Right to Revoke Right to Revoke You can revoke your declaration of contract within 14 days in text form (e.g. letter, fax, ) without indicating any reasons. The notice period begins on receipt of this notification in written form. The deadline for revocation is satisfied if the revocation is sent in a timely fashion. The revocation is to be sent to: myloc managed IT AG Am Gatherhof Düsseldorf Consequences of Revocation In the event of an effective revocation, all mutually received benefits are to be returned and if necessary any benefits received (e.g. interest) are to be released. If you cannot return the benefits received entirely or partially or only in a worsened condition, you must to that extent compensate us for any loss of value. Repayment obligations must be fulfilled within 30 days. The period begins for you on sending your declaration of revocation, for us with the customer s receipt. Special Notes In the case of a service, your right to revoke expires early if your contracting partner began with the performance of the service with your expressed permission prior to the expiration of the notice period for revocation or if you yourself initiated this. End of Notification of Right to Revoke 6 Contract Period, Cancellation 1. The contract period is determined by the time frame stated in each individual case. If the contract is not cancelled in a timely fashion, it will automatically renew by the agreed-upon period; however, this will not be longer than one year. 2. Cancellation of the contract by the customer must be affected in writing. 3. The cancellation period for an agreed-upon minimum contract of 1 month is 4 weeks; for an agreedupon minimum contract period of 3 months, 4 weeks; for an agreed-upon minimum contract period of 6 months, 4 weeks; for an agreed-upon minimum contract period of 12 months 3 months and for a minimum contract period of 24 months 3 months to the end of the specified minimum contract period. 4. The right of cancellation without notice for due and sufficient cause remains unaffected. A due and sufficient cause exists especially if: o the customer does not fulfil the customer s obligations deriving from 3 of these General Terms and Conditions, o the customer is more than two weeks in default with payments owed, o the customer violates legal prohibitions, especially provisions of copyright law, law on competition, law on use of names or laws on data privacy/confidentiality, o the customer publishes content of a National Socialist, racist, or extremist nature or that which glorifies violence or child pornography or any other form of illegal content, o the customer continues to violate terms of the contract concluded between the customer and myloc in spite of warning from myloc, o if the technical or other standards change significantly. 5. In the case of a reason for cancellation as defined in 6 (4) first bullet point of these General Terms and Condition, myloc can, at its own discretion, exercise the right of cancellation without notices or block access to the internet for the server used by the customer without prior notices or without setting

4 a deadline for correction, until the breach of obligations is remedied. myloc will assess a fee for expenses incurred for blocking a server in the amount of Euro. 6. If a contract whose minimum contract period has not yet been fulfilled is cancelled by myloc for due and sufficient cause and with immediate effect, the customer is still obligated to render payment. The amount to be paid will come to 50% of the monthly fee, which corresponds to the losses inflicted on myloc by the customer s breach of contract, to the extent that the customer does not prove that the actual loss is lesser. This obligation ends with the reaching of the contract s minimum contract period. 7. The assertion of claims to compensation for damages going beyond this and deriving from another legal basis is unaffected by 6 (4) of these General Terms and Conditions. 8. In the case of a contract for co-location/it-housing-services, the customer grants myloc a contractual lien right to any hardware installed by the customer as a security against any claims deriving from the contract. Moreover, in the event of default on payment lasting 10 days or more, myloc has the right to block internet access for the customer s server without giving notice or setting a deadline. myloc will charge a fee for expenses incurred in the amount of Euros to unblock the server. 7 Liability 1. myloc is liable for damages that are inflicted by it or by its auxiliary personnel through gross negligence or malicious intent. In the case of breach of essential contractual obligations, liability is restricted to foreseeable and typical damages in cases of simple negligence. Liability for culpable injury to life or limb or health is unaffected by this. 2. The customer is obligated to indemnify myloc and hold myloc harmless internally with respect to any third party claims deriving from illegal conduct of the customer or errors in the content that the customer provides. 3. The customer is solely and exclusively responsible for the content stored on the server. 4. myloc will operate its technical infrastructure in conformity with the state of the art. myloc is not liable for damages that are inflicted by attacks from third parties on the technical infrastructure either already in place or installed at myloc, especially not those caused by DDoS (Distributed Denial of Service)- attacks, virus attacks or other attacks from hackers. 8 Data Privacy Statement 1. The customer gives consent that the customer s personal data will be acquired and used by myloc in compliance with legal regulations. 2. If the customer makes use of a Domain Service, the customer gives consent going beyond 8 of these General Terms and Conditions that the customer s personal data will be forwarded to the office responsible for domain registration. 9 SCHUFA [Credit Reporting Agency]-Clause 1. On ordering services, the customer gives consent that myloc will share data concening the application for, acceptance of and termination of this contract with SCHUFA Holding AG, Kormoranweg 5, Wiesbaden, and will receive information about the customer from SCHUFA. Independent of this, myloc will also share data on conduct in violation of this contract with SCHUFA. These reports will only be made after all affected interests have been weighed. 2. SCHUFA stores and shares these data with its contracting parties inside the EU-domestic market, in order to provide information for the assessment of the creditworthiness of natural persons. Contracting parties of SCHUFA include predominantly credit institutions, credit card and leasing companies. Along with these, SCHUFA shares information with retail, telecommunications and other companies that provide goods and services for credit. SCHUFA only makes personal data available if there a justified interest in this information is credibly demonstrated in the specific case. In the case of tracking debtors, SCHUFA releases address information. In disclosing information, SCHUFA can also communicate a probability value for evaluating the credit risk based on its data to its contracting partners (credit scoring procedure).

5 10 Court of Jurisdiction, Applicable Law 1. If the contracting partner is a merchant, a legal person under public law or a special estate under public law, Düsseldorf will be accepted as the exclusive court of jurisdiction for all claims that derive from this contract. This like applies to persons who have no public court of jurisdiction in Germany or persons who have transferred their domicile or habitual residence outside of Germany after the concluding oft he contract or whose domicile or habitual residence is not known at the time the complaint is brought. 2. German law applies to contracts between myloc and the customer. 11 Concluding Provisions 1. The customer can only offset with claims against myloc if these are recognised by myloc or have legal force. 2. All of myloc s declarations to the customer can be made in text form. 3. Should any provision of these General Terms and Conditions prove unenforceable, the enforceability of the other provisions remains unaffected. The unenforceable provision will be deemed replaced by a legally enforceable one that, in commercial terms, most closely approximates the sense and purpose of the unenforceable provision. THIS NOTICE OF RIGHT OF TO REVOKE AND THESE GENERAL TERMS AND CONDITIONS ARE UNDER COPYRIGHT HELD BY THE LAW OFFICES KANZLEI DANIEL RAIMER AND MAY ONLY BE REPROUCED AND USED WITH THEIR PERMISSION. VIOLATIONS WILL BE PROSECUTED UNDER CIVIL AND CRIMINAL LAW.