EMC HostCo GmbH Terms and Conditions

gültig ab 1. März 2008

§1 General provisions

These Terms and Conditions apply between you and EMC HostCo GmbH (EMC). They apply only if they do not include the product sheets for each EMC product or the terms of the Order Forms.

These General Terms and Conditions and those of the Product Sheets and other Terms shall always apply in the form in which they are published under https://www.emc-hostco.de/ upon conclusion of the contract. Changes to the General Terms and Conditions and Product Sheets will be notified to you by email or post no later than one month before the entry into force and will take effect if you do not object within one month of receipt of the notification.

§2 Establishing contracts

We accept your orders expressly or by sending access data or other actual actions. We always understand your orders in such a way that you waive an express acceptance within the meaning of Section 151 of the German Civil Code (BGB). The contract is concluded on our terms and conditions and not on those offered by you by additions or changes to the order forms, unless we confirm them to you in writing.

§3 Duration of Contract

The duration of our contractual relationships is always determined by the contract documents. If, exceptionally, this is not the case, the contractual relationships always last one year. They shall then be quietly extended for a further 12 months if they are not terminated by one of the contracting parties with a period of one month before expiry. Any termination must be in writing.

If minimum durations are calculated by months, we mean full calendar months. If, in accordance with our terms or declarations, the commencement of the contract is determined to be one day within a calendar month, periods specified in years or months shall always be calculated from the end of that month.

§4 Performance periods

Delays in performance due to force majeure or due to events that make performance much more difficult or impossible for us, such as strikes, lockouts or official orders, we are not responsible for even with bindingly agreed deadlines. This also applies if there are delays with third parties that we use to provide services. Such delays entitle us to defer the benefit for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part because of the part not yet fulfilled.

§5 No self-commitment if we refuse performance

Should we have to inform you that we are obliged to restrict or terminate services, for example due to late payment, this does not give rise to any liability on our part if this should not be done or only incompletely. Should the service continue to be performed even after the threat of a refusal to perform, our right to remuneration will remain.

§6 Contracts

Claims for defects are in principle time-barred after two years.

§7 Sale Contract

You can only demand withdrawal, reduction, damages or compensation for futile expenses after you have given us the possibility of subsequent performance of any defective service.

We reserve ownership until all of our claims arising from our business relationship are met. Fulfilment in this sense is only due when cheques are finally credited and direct debits and receipts are no longer revocable. You assign your claims from any resale of goods subject to retention of title to us at this time. We are entitled to collect the claim from any resale even if you assign such a claim. Our power of confiscation shall remain in place even if you are authorised to collect. We will not take the claim ourselves as long as you are not in default. At our request, however, you will inform us of such a debtor and indicate the assignment to us. We are only entitled to reclaim goods subject to retention of title if you are in default. Such a recovery shall have no influence on the contractual relationship and shall not be construed in particular as a withdrawal from the contract. Insofar as the realisable value of the collateral we hereby grant exceeds twenty percent of our claims against you, you may demand release from us.

§8 Copyrights, patents and licenses

Any export of our products requires our written consent. You warrant that you will comply with the applicable embargo provisions of the Federal Republic of Germany and the United States. Ownership and all rights to software remains with us, or our suppliers. Any copyrights of third parties to products delivered by us will be accepted by you with receipt of our services and deliveries.

§9 Contractual ancillary obligations

We commit each other to remain reachable to each other. We will compensate each other for the damage caused by one of the failures to communicate the other e-mail address, postal address, change of legal form or the opening of insolvency proceedings, including provisional ones. In this case, the scope of the damage includes any investigation costs. In particular, searches on the Internet are calculated by our office at a flat rate of 80 (eighty) euros per hour started.

You are obliged to secure your equipment against abuse from your area and from the Internet in such a way as to comply with the current state of the art. If you have not commissioned us with the necessary shielding and your devices are misused, we shall consider ourselves entitled by you without express order, but not obliged, to do everything necessary according to the state-of-the-art for technicians against compensation for our expenses in the amount of the hourly rate offered by us, in order to mitigate the damage caused by the abuse, in particular in the case of hacking, to interrupt the line and to carry out the investigations necessary to establish the identity of the attacker. You have the right to raise objections against their reason and amount within three months of receipt of the subsequent invoice. According to this, such objections are excluded.

§10 Shipping

Shipping is done from EMC's headquarters or warehouse. Unless otherwise agreed in writing, you bear the risk and costs of all shipments, including any returns. By leaving our warehouses, the danger passes to you. We reserve the right to determine the shipping method, shipping company and insurance ourselves. Shipping methods, types and insurance values that you particularly request must be communicated to us in writing when ordering.

§11 Prices, Maturities und Deposit

Receivables from the delivery of goods and works are due as soon as they have left our warehouses. Please check that we cannot grant cash discount and invoice deductions. Indication of due dates and payment terms on invoices must always be understood as follows that there is already delay after the expiry of such periods. For reminders we charge 12 (twelve) Euros.

The basis for the prices of our services is basically what is indicated as a price on our web server https://www.emc-hostco.de at the time of conclusion of the contract, unless we have agreed otherwise in writing.

You can only offset against our claims with undisputed or legally determined claims. You have back­behal­tungs­rights only because of possible counterclaims from the same contractual relationship.

We will prove the invoiced consumption if you wish. However, we are only obliged to do so if you present facts in a coherent and precise way. The request to prove the extent of consumption is not enough. No later than one year after the date of the invoice, the consumption on which the invoice was based shall be deemed to have been recognised by you.

§12 Liability

We are only liable for damages in the event of intent or gross negligence.

Please understand that we are not liable in any case for the restoration of data or for compensation for lost profits. We also do not stand for any loss or mutilation of data related to their transmission. This also applies in the event that you have charged us with securing your data, unless a special liability or guarantee has been agreed in writing.

The exemption from any claims of third parties due to lack of availability of the network or malfunctions or compensation for other indirect damages is also excluded.

You agree that no use of our Services violates applicable law or regulations. If necessary, you will indemnify us from any claims of third parties arising from such conduct contrary to the contract.

Insofar as you have ordered products not intended for security or containing security instruments from us, we are not responsible in any way for whether or not data traffic sent or received over our lines is intended by you or not.

We cannot be held liable for the violation of any patent or other intellectual property rights. We are also not responsible for the content of transmitted data.

EMC's liability is limited to three-quarters of the net compensation paid by Customer during the last twelve months preceding the date of the loss.

EMC is not liable for any loss or mutilation of data related to its transmission.

We only make warranties, in particular for minimum availability, or available capacity, expressly and in writing.

§13 Return of abandoned items

For this reason, you are particularly obligated to notify us of any change in your registered office, legal form or address. If necessary, you will inform you of the change of location of items provided by us without request. Such items will also mark you as our property separately and conspicuously.

§14 Exchange, Secrecy

We are particularly committed to protecting personal data. In principle, these will only be passed on if the person concerned has given his consent. This also applies if we are asked for information by the police, for example. In such cases, you agree to contact the requesting authority for information or to inform us within a reasonable period of time that you do not wish to pass on the data. If we do not receive a message from you at our request, we are entitled to assume that you agree to the transfer of your name and address to the requesting authority.

Compliance with all data protection regulations that may be observed is the responsibility of the respective contractual partner for his/her area of responsibility.

Each contractual partner undertakes to keep secret the data of the other contracting party that has come to his attention, even after the termination of this contract.

The mandatory legal provisions, in particular the Teledienst Data Protection Regulation (TDSV), remain unaffected.

We are entitled to create the necessary logs (log files) from data streams for the preparation of our invoices.

You are aware that data not being encrypted or not going over encrypted lines ­sted on the Internet is not safe from unauthorized persons. If you have ordered firewall, spam filters or virus scanners from us, we assume that you are familiar with the basics of how these products work and that they amount to filtering out data according to certain patterns and criteria. There is nothing to prevent you from filtering out data that you actually want to catch.

§15 Final Provisions

These general terms and conditions always apply between us, as they can be viewed on our web server https://www.emc-hostco.de at any time. They will be happy to be sent to you at any time.

If it transcends the fact that a provision was not actually taken, that gap should be closed in accordance with the other provisions of this Treaty and the purpose pursued by that treaty. If it transcendes the fact that any provision of this Agreement is invalid or if any provision becomes invalid or is deemed to be invalid by future legislation or jurisdiction, it shall not affect the validity of the remaining provisions. However, this does not apply where it is a provision whose invalidity is frustrated or impairs by the treaty the intended purpose. In this case, each party is entitled to terminate the contract at the end of the year.

Ancillary agreements and amendments to this agreement must be made in writing in order to be legally effective. Oral side agreements have not been made.

You may transfer rights and obligations under our contract to a third party only with the prior written consent of us.

German law applies to the contractual relations of the parties.

The place of performance for all obligations arising from the contractual relationship as well as the place of jurisdiction for all legal disputes arising from the contractual relationship as well as all legal disputes arising from it and relating to its effectiveness is Munich.