1) Scope of application
1.1 These General Terms and Conditions of Business (hereinafter called “GTCB”) of Patrick Posner, trading as “Patrick Posner – Softwareentwicklung und Systemadministration” (hereinafter referred to as “Provider”), apply to all contracts concluded with the Provider by an entrepreneur (hereinafter referred to as “Client”) in respect of services which the Provider presents on his website. The consideration of any conditions of the Client is hereby rejected, unless otherwise agreed.
1.2 These GTCB apply exclusively even if the Provider performs the service for the Client without specific proviso, in full awareness of the Client’s conditions which contradict or differ from these conditions.
1.3 An entrepreneur within the meaning of these GTCB is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its commercial or independent professional activities.
2) Services of the Provider
2.1 The Provider performs services concerned with making content available via the Internet. For this he provides the Client with system resources on a virtual server. The Client can store content on this server up to a certain volume. The exact volume can be taken from the service description of the Provider.
2.2 On the server the content is stored ready for access via the Internet under an Internet domain allocated to the Client. The Provider’s services in transmitting data are limited solely to the data communication between the handover point from the data communication network operated by the Provider to the Internet and the server provided for the Client. The Provider is not able to intervene in any data traffic outside his own communication network. Therefore the successful transmission of information from or to the terminal retrieving the content is not a component of the service.
2.3 The online service of the Provider is offered subject to availability. 100 percent availability is not technically possible and the Provider is therefore unable to guarantee this to the Client. However, the Provider will make every effort to ensure that the service is as consistently available as possible. In particular maintenance, security or capacity requirements, and events beyond the Provider’s control (disruption of public communication networks, power cuts, data centre outages, etc.) can lead to disruption or temporary unavailability of the service.
2.4 The Provider performs the aforementioned services with an overall availability of 98%.
Availability is calculated on the basis of the time allocated to each calendar month in the contractual period less the maintenance periods. The Provider will carry out maintenance work during periods of low use, as far as this is possible.
2.5 The content of the storage space provided for the Client is to be backed up periodically by the Provider. Details as to the frequency and procedure of backups can be taken from the service description of the Provider. The Client has no right to receive backup media, only to retransfer of the saved content to the server.
2.6 The Provider is entitled to adapt the hardware and software used to provide services to the latest state of technology. If such adaptation results in additional requirements for the content stored on the server by the Client in order to guarantee the provision of services by the Provider, then the Provider is to inform the Client of these additional requirements in good time. In this case the Client is to inform the Provider at the latest four weeks before the conversion date whether their content will be adapted to the additional requirements in time – i.e. at the latest three working days before the conversion date. If the Client refuses to adapt their content or does not respond to the Provider within the aforementioned time limit, then the Provider may terminate the contractual relationship with effect from the conversion date.
3) Service changes and discontinuation of service
3.1 The Provider retains the right to change the services offered or offer differing services, unless this is unreasonable for the Client.
3.2 The Provider also retains the right to change the services offered or offer differing services,
- if obliged to do so due to a change in the legal situation
- in order to comply with a court judgment against him or the decision of a public authority
- if the relevant change is necessary to close an existing security gap
- if the change is purely advantageous for the Client
- if the change is of a purely technical or procedural nature without significant consequences for the Client
3.3 Changes having only an insignificant effect on the Provider’s services do not represent service changes within the meaning of this clause. This applies, in particular, to changes to the graphic presentation alone and a mere change in the arrangement of functions.
3.4. The Provider further reserves the right to cease operating the service. In this case the Provider is obliged to inform the Client without undue delay, but at least 30 days before discontinuation of the service, in text or written form (by email or letter). If the service is discontinued the Provider shall within 30 days at his own expense provide the Client with appropriate support with the migration of their website to another provider and give the Client access to a copy of the hosted website.
For this the Client grants the Provider the non-transferable, non-exclusive right, limited in time to the duration of the contract and restricted to the location of the relevant server (for backup copies: to their storage location) to duplicate for the purposes of this contract the protected content on the server onto another server acting as a mirror, and to make a sufficient number of backup copies.
The Provider is to irretrievably delete all backup copies and other data of the Client remaining on his servers 60 days after discontinuation of the service. The Provider has no right of retention of right of lien in respect of this data.
4) Contractual conclusion
4.1 The services described on the website of the Provider do not represent a binding offer on the part of the Provider, but rather facilitate the issue of a binding offer by the Client.
4.2 The Client can issue an offer via the online order form on the Provider’s website. The Client issues a legally binding contractual offer for the selected services by clicking on the button to complete the order process after entering the personal data required.
4.3 The Provider can accept the Client’s offer within five days by
- sending the Client an order confirmation in writing or in text form (fax or email), whereby receipt of the order confirmation by the Client is decisive, or
- requesting payment from the Client after the order is sent.
If more than one of the aforementioned alternatives apply, the contract comes into effect when the first of the aforementioned alternatives occurs. If the Provider does not accept the Client’s offer within the aforementioned time limit, this is deemed rejection of the offer with the effect that the Client is no longer bound by their declaration of intent.
4.4 The time limit for acceptance of the offer commences on the day after the offer is sent by the Client and ends upon expiry of the fifth day after the day the offer is sent.
4.5 When an offer is sent via the online order form of the Provider, the contractual text is stored by the Provider after contractual conclusion and sent to the Client in text form (e.g. by email, fax or letter) after the Client’s order is sent. The Provider does not enable any other access to the contractual text.
4.6 Before sending a legally binding order via the Provider’s online order form, the Client can correct the entries at any time using the standard keyboard and mouse functions. In addition, all entries are shown again in a confirmation window before binding issue of the order and can be corrected again there using the standard keyboard and mouse functions.
4.7 Conclusion of the contract is possible only in the German language.
4.8 Order processing and correspondence are generally dealt with by email and automated order settlement. The Client must ensure that the email address provided during the order process is correct so that the emails sent to this address by the Provider can be received. In particular, the Client must ensure that, if SPAM filters are in use, all the emails sent by the Provider or third parties commissioned by the Provider to process the order can be received.
5) Duties of the Client
5.1 The content stored by the Client on the storage space provided for the Client may be subject to copyright or data protection restrictions. The Client grants the Provider the right to make available via the Internet upon request the content stored on the server by the Client, in particular to copy and transmit this content and duplicate it for the purposes of creating security copies. The Client is responsible on their own account for checking whether their use of personal data complies with data protection requirements.
5.2 The Client is obliged not to store on the storage space provided any content which breaches valid legislation or infringes the rights of third parties. The Client must also ensure that the installed programs, scripts, etc. do not endanger operation of the server or the communication network of the Provider or the security and integrity of other data stored on the Provider’s servers.
5.3 The Client indemnifies the Provider against all claims asserted by third parties against the Provider for infringement of their rights in connection with content stored on the server by the Client. The Client is to bear the necessary costs of legal defence including all court and legal representation costs to a reasonable extent. This does not apply if Client is not responsible for the legal breach. In the case of a claim by a third party the Client shall make available to the Provider immediately, truthfully and in full all information necessary to examine the claims and mount a defence.
5.4 In the case of an imminently threatening or existing breach of the aforementioned duties and not obviously unfounded claims asserted by third parties against the Provider in connection with the content stored on the server the Provider is entitled, also taking account of the legitimate interests of the Client, to temporarily suspend the Internet connectivity of this content in part or in full with immediate effect. The Provider is to inform the Client of this action immediately.
5.5 If programs, scripts, or the like installed by the Client endanger or adversely affect operation of the server or the communication network of the Provider or the security and integrity of other data stored on the Provider’s servers, then the Provider may deactivate or uninstall these programs, scripts, etc. If necessary to remove the risk or adverse effect, the Provider is also entitled to interrupt Internet connectivity of the server on which the content is stored. The Provider is to inform the Client of these actions immediately.
5.6 To enable access to the storage space provided for the Client, the Client is to receive a user ID and an alterable password. The Client is obliged to change the password at regular intervals. The Client may only pass on the password to persons who are authorised by the Client to access the storage space. The Client is not permitted to temporarily or partly provide or sell on the service to third parties either free of charge or for a fee.
The Client is permitted to create a safety copy for their own use, which is to be labelled as such. Any further creation of copies is not permitted.
6) Payment and payment conditions
6.1 Unless stated otherwise in the Provider’s offer, the prices stated are net prices, which are subject to VAT at the statutory rate.
6.2 Payment for the Provider’s services is to be made by the Client monthly in advance by at the latest the fifth working day of each month, unless otherwise agreed. The duty to pay the fee commences when the storage space is made available by the Provider. For the month in which the storage space is initially made available, the fee shall be 1/30 of the agreed amount for each day following availability.
6.3. The Client can pay the fee by any one of the following payment methods:
6.3.1. If the payment method selected is credit card payment via Stripe the invoiced amount is payable immediately upon contractual conclusion. Payment settlement is made via the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter referred to as: “Stripe”). Stripe retains the right to carry out a credit check and to reject this payment method in the case of a negative credit check.
6.3.2. If the payment method selected is “PayPal”, settlement is made via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter referred to as “PayPal”) under the PayPal conditions of use displayed here: https://www.paypal.com/de/webapps/mpp/ua/useragreement-full. If the Client does not have a PayPal account, the PayPal conditions of use for payments without a PayPal account are applicable as displayed here: https://www.paypal.com/de/webapps/mpp/ua/privacywax-full. In the order process the Client is redirected from the Provider’s online shop to the website of PayPal.
After confirmation of the payment instruction, the Provider asks PayPal to initiate payment. The payment transaction is carried out automatically by PayPal. The Client receives further information in the order process.
6.4 Provision of services by the Provider is dependent upon the Client fulfilling their payment obligations in good time. Should the Client default on payment of a not inconsiderable portion of the fee payable for two consecutive months, then the Provider can terminate the contractual relationship on important grounds without observing a notice period.
7) Contractual term and termination
7.1 This contract is concluded for an unlimited period but at least for the period of one (1) month (minimum term). During the minimum term, the contract can be terminated by giving notice to the 15th of the following month. If the contract is not terminated in good time it extends by a period of a month at a time and can then be terminated again to the 15th of the following month of the relevant contractual term.
7.2 The right to extraordinary termination on important grounds remains unaffected. There are important grounds if, under consideration of all the circumstances of the individual case and taking account of the reciprocal interests, the terminating party cannot reasonably be expected to continue the contractual relationship until its agreed conclusion or until expiry of the termination notice.
7.3 Terminations must be made in writing or in text form (e.g. by email).
7.4 After the ending of the contractual relationship the Provider is to make available to the Client on a data carrier the content stored on the storage space provided for the Client. Any rights of retention of the Provider remain unaffected.
8.1 The Provider is liable for all contractual, quasi-contractual, statutory and tortious claims to damages and expenses as follows:
8.1.1 The Provider bears unlimited liability on all legal grounds
- in the case of deliberate acts or gross negligence,
- in the case of deliberate or negligent damage to life, limb or health,
- on the basis of a guarantee, unless otherwise agreed for this matter,
- on the basis of mandatory liability, such as under the German Product Liability Act (ProdHaftG)
8.2 If the Provider negligently violates a fundamental contractual duty, liability is limited to the contractually typical foreseeable damage, provided there is no unlimited liability in line with the clause above. Fundamental contractual duties are those which the contract imposes upon the Provider according to its content for achievement of the contractual purpose, the fulfilment of which is what makes proper completion of the contract actually possible and upon whose fulfilment the Client is entitled to rely.
8.3 In all other respects liability of the Provider is excluded.
8.4 The liability regulations apply with regard to the liability of the Provider for his vicarious agents and legal representatives.
9) Changes to the GTCB
9.1 The Provider retains the right to change these GTCB at any time without giving a reason, unless this is unreasonable for the Client. The Provider is to inform the Client of any amendments to the GTCB in good time in text form. If the Client does not object to application of the new GTCB within a time limit of 4 weeks from notification, the amended GTCB are deemed accepted by the Client. The Provider is to inform the Client in the notification of their right to object and the implications of the time limit to object. If the Client objects to the amendment within the aforementioned time limit, then the contractual relationship continues under the original conditions.
9.2 The Provider also retains the right to amend these GTCB
- if obliged to do so due to a change in the legal situatio
- in order to comply with a court judgment against him or the decision of a public authority
- if he introduces additional, completely new services, utilities or service elements which must be described in the GTCB, unless this results in a detrimental change to the contractual relationship in force up to this time
- if the change is purely advantageous for the Client; or
- if the change is for purely technical or procedural reasons, unless it has considerable consequences for the Client.
9.3 The Client’s termination right in accordance with clause 7 remains unaffected.
10) Applicable law, jurisdiction
10.1 For all legal relations of the parties, the law of the Federal Republic of Germany applies.
10.2 If the Client is acting as a merchant, legal person of public law or a special fund under public law with its seat within the jurisdiction of the Federal Republic of Germany, then the exclusive place of jurisdiction for all disputes arising out of this contract is the business seat of the Provider. If the Client has its seat outside the jurisdiction of the Federal Republic of Germany, then the business seat of the Provider is the sole place of jurisdiction for all disputes arising out of this contract. However, in the above-mentioned cases the Provider is entitled in any event to consult the court at the seat of the Client.
Valid from: 31.01.2023