General Terms and Conditions of EMC HostCo GmbH
valid from 1st March 2008
§1 General provisions
These terms and conditions apply between you and EMC HostCo GmbH (EMC). They only apply if the product sheets for the individual EMC products or the order forms do not contain any special features.
These general terms and conditions and the product sheets and other conditions always apply in the form in which they are published at the conclusion of the contract at https://www.emc-hostco.de/. Changes to the General Terms and Conditions and product sheets will be communicated to you by e-mail or by post at the latest one month before the effective date and will be effective if you do not object within one month of receipt of the notification.
§2 Conclusion of contracts
We accept your orders expressly or by sending access data or other actual acts. We always understand your orders in such a way that you waive an express acceptance within the meaning of §151 BGB. The contract is concluded on our terms and conditions and not on those which are offered by you by additions or changes to the order forms, unless we confirm this in writing.
§3 Contract duration
The duration of our contractual relationships always results from the contract documents. If this is not the case in exceptional cases, the contractual relationships always last one year. They will then be tacitly renewed for a further twelve months if they are not terminated by one of the contracting parties with one month's notice before expiry. Each termination requires the written form.
If minimum terms are calculated by months, we mean full calendar months. If, according to our conditions or according to our declarations, the commencement date of the contract is determined to be within one calendar month, periods in years or months shall always be calculated from the end of this month.
§4 Service periods
Delays in performance due to force majeure or due to events that make our performance significantly more difficult or impossible, such as strikes, lockouts or official orders, we are not responsible even for bindingly agreed periods. This also applies if delays occur in third parties, which we use to provide services. Such delays entitle us to postpone the service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the unfulfilled part.
§5 No commitment, if we refuse the performance
Should we have to inform you that we are forced - for example due to late payment - to restrict or terminate services, this does not constitute any liability on our part, if this is not done or only partially. If the service continues to be provided even after the threat of a refusal to perform, our claim to compensation remains.
§6 Work contracts
Claims for defects expire after two years.
§7 Purchase contracts
Withdrawal, reduction, compensation for damages or reimbursement of futile expenses can only be demanded after you have given us the possibility of supplementary performance of a performance that was perhaps inadequate.
We reserve ownership until all our claims arising from our business relationship are met. Fulfillment is in this sense only when checks are finally credited and direct debits and indentations are no longer revocable. Your claims from any resale of reserved goods you already assign to us. We are also entitled to collect the claim from any resale if you assign such a claim. Our collection power remains in place even if you have the power of collection. We will not collect 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 reserve the right to reclaim retained goods only if you are in default. Such recovery shall have no effect on the contractual relationship, in particular shall not be construed as a withdrawal from the contract. Insofar as the realizable value of the securities we hereby grant exceeds 20% of our claims against you, you may request release from us.
§8 Copyrights, patents and licenses
Any export of our products requires our written consent. You affirm that you comply with the applicable embargo regulations of the Federal Republic of Germany and the United States. Property and all rights to software remain with us, or our suppliers. Any copyrights of third parties to products supplied by us will be accepted by you upon receipt of our services and deliveries.
§9 contractual secondary obligations
We commit each other to each other to stay reachable. We will indemnify each other for the damage caused by failure of one to inform the other email address, postal address, change of legal form or the opening of a - even provisional - insolvency proceedings. In this case, the scope of the damage includes any investigation costs. In particular, searches on the Internet by our office are charged at a flat rate of 80 (eighty) euros per commenced hour.
You are required to protect your equipment against misuse from your area and the Internet, as it corresponds to the state of the art. If you have not commissioned us with the required shielding and your equipment will be abused, we shall be entitled without express order as authorized by you, but not obligated to compensate for our expenses in the amount of the hourly rate for technicians offered by us after the State of the art required to reduce the damage of the abuse, in particular in the case of hacking to break the line and to make the necessary to establish the identity of the attacker investigations. You have the right, to raise objections against their cause and amount within three months of receipt of the resulting invoice. Thereafter, such objections are excluded.
Shipped from the headquarters or warehouse of EMC. Unless otherwise agreed in writing, you bear the risk and cost of all shipments, including any returns. By leaving our warehouse, the danger passes to you. We reserve the right to determine the shipping method, shipping company and insurance. Of you particularly desired shipping methods, types and insurance values are to be communicated to us in writing in the order.
§11 prices, due date and deposit
Receivables from delivery of goods and works are due as soon as they have left our warehouse. Please let us know that we can not grant discount and deductions. Specification of due dates and payment terms on invoices are always to be understood that after expiry of such periods already default. For reminders we charge 12 (twelve) euros.
Basis for the prices of our services is basically what is at the time of the conclusion of the contract on our web server https://www.emc-hostco.de shown as a price, unless we have agreed otherwise in writing.
You can only set off our claims against undisputed or legally established claims. You have rights of retention only because of any counterclaims from one and the same contractual relationship.
We will prove the billed consumption, if you wish. However, we are only obliged to do so if you present facts in a coherent and precise manner. The simple request to prove the extent of consumption is not enough. At the latest one year after the date of the invoice, the consumption on which the invoice was based shall be deemed to have been accepted by you.
We are liable for damages only in cases of intent or gross negligence.
Please understand that we are under no circumstances liable for the recovery of data or compensation for loss of profit. We are also not responsible for any loss or corruption of data in connection with their transmission. This also applies in the event that you have entrusted us with securing your data, unless a special liability or guarantee has been agreed in writing.
The exclusion of any claims of third parties due to lack of availability of the network or malfunction or compensation for other indirect damages is excluded.
You agree that any use of our services will violate applicable law or regulations. You will be exempted us from any claims of third parties from such breach of contract.
Insofar as you have ordered non-safety-related or safety-related products from us, we have no responsibility whatsoever for whether or not you intend to receive or receive data traffic through our lines.
We can not be held liable for the infringement of any patent or other intellectual property rights. We are also not responsible for the content of transmitted data.
The amount of the liability of EMC shall be limited to the sum of three quarters of the net remuneration paid by the Customer during the last twelve months preceding the date of the claim.
A liability of the EMC for any loss or mutilation of data in connection with their transfer is excluded.
We give guarantees, in particular for minimum availability, or available capacity only expressly and in writing.
§13 Return of surrendered objects
If we leave you items for use - whether for consideration or free of charge - you are therefore particularly obliged to notify us of any change in your registered office, legal form or address. The change of the location of items left by us will be communicated to you, if necessary. Such items will also mark you as our property separately and conspicuously.
§14 data exchange, secrecy
We commit ourselves in particular to protect personal data. Basically, such are only passed on if the person has consented. This also applies if we are asked by the police for information. In such cases, you undertake to contact the information requesting agency yourself or to notify us within a reasonable period of time that you do not wish to disclose the data. If we do not receive a message from you on our request, we are entitled to assume that you agree to the transfer of your name and address to the requesting body.
Compliance with any data protection regulations that may have to be observed is the responsibility of the respective contracting party for its area of responsibility.
Each contracting party undertakes to keep the data of the other contracting party which it has received knowledge secret, even after termination of this contract.
The mandatory statutory provisions, in particular the Teleservices Data Protection Ordinance (TDSV), remain unaffected.
We are entitled to make necessary logs (log files) from data streams to generate our invoices.
You are aware that data that is not encrypted or not encrypted over the Internet is not secure against unauthorized access. If you have ordered firewalls, spam filters or virus scanners from us, we assume that you are familiar with the basic principles of how these products work and know that they result in filtering out data according to specific patterns and criteria. There is nothing to prevent it from filtering out data that you actually want to receive.
§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 sent to you anytime.
If it should appear that a point about which a provision should be made has not actually been made, that gap should be closed as it is in accordance with the other provisions of this Treaty and the purpose of this contract is achieved. If any provision of this Agreement is found to be invalid or should any provision be or become ineffective by future legislation or jurisdiction, it shall not affect the validity of the remaining provisions. However, this does not apply if the provision is a provision whose invalidity with the contract destroys or impedes the purpose pursued. In this case, each party is entitled to terminate the contract at the end of the year.
Subsidiary agreements and amendments to this agreement must be made in writing in order to be legally binding. Oral side agreements have not been made.
You may transfer rights and obligations under our contract to third parties only after prior written consent by us.
The contractual relations of the parties are governed by German law.
Place of fulfillment for all obligations arising from the contractual relationship as well as place of jurisdiction for all of the contractual relationship as well as all legal disputes arising therefrom and which is effective shall be Munich.