General Terms and Conditions

1. GENERAL – SCOPE OF APPLICATION

1.1 The following General Terms and Conditions of Contract apply to all business relationships between the customer and OPaaS GmbH, hereinafter referred to as "us/we". They are an integral part of all contracts concluded with the customer and also apply to future services and offers, even if they are not separately agreed upon again.

1.2 Terms and conditions of the customer or third parties shall not apply and shall not become part of the contract, even if we do not separately object to their validity in individual cases.

1.3 We expressly reserve the right to make changes to our General Terms and Conditions by prior notification via the e-mail address provided as contact. If the customer does not agree to the changes, we are entitled to duly terminate the contractual relationship.

2. CONCLUSION, DURATION AND TERMINATION OF CONTRACT

2.1 The contract is concluded by the customer's order and our acceptance within a period of 14 days after receipt of the order, in each case by e-mail.

2.1.1 The provision of services shall commence within 24 hours of conclusion of the contract.

2.2 The customer assures that the data provided by him is correct and complete. Changes must be communicated immediately in writing.

2.3 Unless otherwise agreed, the contracts are concluded for a minimum of 12 months and can be terminated by either party with 30 days' notice to the end of the contract term. If no notice of termination is given, the contract is extended by a further year at the end of the respective contract term.

2.4 We reserve the right to terminate the contractual relationship without notice for good cause, for example

2.4.1 if the customer is in arrears on two consecutive payment dates with a payment that exceeds one month's amount, despite a reminder setting a deadline,

2.4.2 if the customer, in particular in accordance with paragraph 5.2, significantly endangers our technical systems and equipment or impedes their functionality,

2.4.3 if the customer uses our technical systems and facilities for legal violations and does not immediately cease these violations after becoming aware of them.

2.5 Any termination must be in text form by e-mail to be effective.

3. SCOPE OF SERVICES

3.1 We guarantee an average annual server availability of 99.8%. Excluded from the availability calculation are planned maintenance work with the time expenditure communicated by us, events of force majeure for which we are not responsible, as well as failures caused by the customer or by customer-specific programming.

3.2 A fixed IP address is assigned for the “OPaaS First Class Hosting” service area. Customers of “OPaaS Business Class Hosting” are not entitled to the same IP address being assigned to the server for the entire term of the contract.

3.3 Unless otherwise agreed, the service includes a data transfer volume of 100 gigabytes per month. The data transfer volume used is the sum of all data transferred in connection with the customer order (e.g. e-mails, downloads, uploads, websites). If the data volume is exceeded, we are entitled to charge the costs incurred for the higher volume in proportion to the flat-rate costs for the data transfer volume of 100 gigabytes.

3.4 Unless otherwise agreed, a total storage volume of 4 gigabytes is available for all e-mail addresses per virtual mailbox. Up to 300 e-mail addresses are permitted per instance.

4. TERMS OF PAYMENT AND DEFAULT

4.1 The hosting services contractually agreed by us are charged at the updated prices, which can be viewed at www.opaas.cloud, plus statutory VAT.

4.2 We are entitled to increase our prices no more than once a year from July of each calendar year. The adjustment may not exceed the increase in the consumer price index (CPI) in the ratio of the January value/current year to the January value/previous year.

4.3 Depending on the contractual agreement, an annual invoice will be issued using the agreed means of payment. The customer undertakes to comply with the provisions of the payment service used by us. The billing period is determined by the respective hosting service, but for a maximum of twelve months.

4.4 If the payment period granted by us is exceeded, we shall be entitled to charge interest on arrears from the due date, even without a reminder. The amount shall be based on the provisions of § 288 BGB.

4.5 For returned direct debits, we charge a processing fee of currently 8 euros per direct debit plus the bank charges incurred by us. If a higher amount is stated in our current price list, this will be charged.

4.6 The customer may only offset our claims against undisputed or legally established claims.

4.7 Invoices are provided exclusively in electronic/text form.

5. ADMINISTRATIVE RIGHTS AND DUTIES / DATA SECURITY

5.1. When receiving SSH access, the customer undertakes to set up and manage its servers in such a way that the integrity and availability of the networks, servers and data of third parties are not jeopardized. In particular, it is strictly forbidden to use the servers for (d)DOS attacks or to operate open mail relays or other systems on the server that can carry out these actions. In the event of violations, we reserve the right to block the server without prior notice. The customer will be notified of measures such as blocking or deletion of the server and can submit a statement within 24 hours from the time of notification. We will decide whether to restore the server after examining the situation but reserve the right to extraordinary termination in all cases.

5.2. The customer is granted a simple usage authorization for the “OPaaS Cloud” service area. We monitor the servers 24 hours a day for outages and provide free customer support for simple services. We charge a service fee for more extensive services lasting 10 minutes or more, subject to prior agreement with the customer.

5.3. The customer is obliged to use the services provided appropriately and to refrain from abusive and illegal activities. Violations of the law must be remedied immediately after the customer becomes aware of them. We are entitled to temporarily block access to the customer's data, even in suspected cases, if claims are or may be made against us by third parties and our interest in eliminating the legal infringement, including the resulting further claims and risks, outweighs the customer's interest in the accessibility of the data.

5.4. The customer is responsible, at his own discretion, for a regular backup (backup copy) of his data outside the server provided by us. The customer shall ensure that the backup copies can prevent data loss with reasonable recovery effort or that data can be recovered with reasonable effort. Insofar as data is transmitted to us, the customer undertakes to make regular backup copies of this data. The customer is obliged to carry out a complete data backup before making any changes of his own or on his behalf. In the event that data is nevertheless lost, the customer shall be obliged to transmit the data concerned to us again free of charge or to restore it.

6. DATA PROTECTION

6.1 Data processing is carried out in accordance with the legal regulations on data protection and data security. Further information on data processing and our data protection practices can be found in our privacy policy, available at www.opaas.cloud/datenschutz.

6.2 If the customer also wishes to process personal data of third parties with our services, the customer alone remains the controller in terms of data protection law. We only process personal data as a processor in accordance with Art. 28 GDPR if a corresponding contract for commissioned processing exists between us and the customer. Such a contract is not concluded automatically. We offer the customer the option of concluding such an order processing contract, possibly supplemented by EU standard contractual clauses, especially if the service is related to a third country.

6.3 It is the customer's responsibility to inform us about the type of data processed by him, in particular whether it is personal data of third parties, for what purpose it is processed and to which categories this data can be assigned. As long as we do not have a contract for order processing with the corresponding information from the customer, we assume that no personal data of third parties is processed with our services and do not take any further measures with regard to data protection regulations.

6.4 We point out that data protection during data transmission on the Internet cannot be fully guaranteed according to the current state of the art. The customer is responsible for the security and backup of the data transmitted by him and stored on the servers.

7. PUBLICATION

Unless otherwise notified in writing, each party grants the other party the non-exclusive, nontransferable, free right of use, unlimited in time and space, to publish the name, address, logo/company logo and trademarks of the other party. The right of use applies exclusively to the reference to the other party as a partner, customer or supplier on websites, press releases and other marketing materials (reference).

8. USE BY THIRD PARTIES

8.1. The customer shall be entitled to grant third parties a contractual right of use to the services it has commissioned on its own responsibility. In this case, the customer shall nevertheless remain the sole contractual partner. The customer shall be liable to us for legal violations as if he had committed the violations himself. The customer shall be solely and fully liable for compliance with the contractual agreements between the customer and us.

8.2. If the cooperation of the third party is required for changes of any kind, the customer shall ensure that all legal and contractual provisions are complied with when transferring the right of use.

8.3. If the third party violates the contractual obligations or does not fulfill the obligation to cooperate, if the data provided by the third party is incorrect or incomplete or if other problems arise with the granting of these rights of use, the customer shall be fully liable for all resulting damages and shall also indemnify us against all claims made against us by the third party or others.

9. USE OF THE SERVICES / CONTENT

9.1. The customer is obliged to check and comply with the statutory provisions arising from the use of the contractually agreed services, in particular the Telecommunications Act, the Telemedia Act, as well as national and international industrial and intellectual property rights, personal rights, the provisions of competition and data protection law, on his own responsibility. He shall indemnify us against all third-party claims arising from breaches of these obligations.

9.2. The customer undertakes not to publish any content that infringes the rights of third parties or violates applicable law in any other way. This includes, but is not limited to, pornographic or obscene material, extremist or immoral content, gambling, material that is likely to seriously endanger the morals of children or young people or violate the rights of third parties (copyrights, name rights, trademark rights and data protection rights). This also includes the publication of defamatory content, insults or denigration of persons or groups of persons.

9.3. The sending of spam mails is prohibited. This includes in particular the sending of unauthorized, unsolicited advertising to third parties. When sending e-mails, it is also prohibited.o provide false sender data or to disguise the identity of the sender in any other way. Furthermore, the operation of applications for mining cryptocurrencies is prohibited. This includes, but is not limited to, mining, farming and plotting cryptocurrencies. In the event of non-compliance, we are entitled to block access.

9.4. If we become aware of illegal activities or content in accordance with Section 8 et seq. Digital Services Act (DDG) and Art. 6 para. 1, Art. 9 Digital Services Act (DSA), we are obliged to immediately request the customer to remove the offending content and are entitled to block access.

9.4.1 In accordance with Art. 8 DSA, we are under no obligation to actively monitor the transmitted or stored information or to actively investigate circumstances that indicate illegal activity. An examination only takes place within the framework of legal obligations or in the event of specific indications of legal violations.

9.4.2 The customer is notified of measures such as the blocking or deletion of content and can submit a statement within 14 days. We will decide whether to restore the content after examining the situation.

9.5 If the customer violates the obligations specified in Section 9 with its content, in particular statutory prohibitions and common decency, it shall be liable to us for compensation for all direct or indirect damages arising from this, including financial losses. In addition, the customer undertakes to indemnify us against claims by third parties - irrespective of the legal basis resulting from the customer or the third parties designated by the customer. The indemnification obligation also includes all legal defense costs incurred.

10. LIABILITY

We are liable for intent and gross negligence. We shall only be liable for slight negligence in the event of a breach of a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely, as well as for damages resulting from injury to life, limb or health. We shall only be liable for foreseeable damage that can typically be expected to occur. In the event of slight negligence, liability shall be limited to EUR 25,000. We shall not be liable for the loss of data and/or programs if the damage is due to the fact that the customer has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents. The customer is obliged to report damage and defects immediately in writing.

11. FINAL PROVISIONS AND SEVERABILITY CLAUSE

11.1. These General Terms and Conditions and the contractual relationship between us and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods and private international law.

11.2. The exclusive, also international, place of jurisdiction for all disputes arising from the contractual relationship is our registered office in Olpe. However, we are entitled in all cases to bring an action at the customer's place of business. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.