General Terms and Conditions for Hosting
1. GENERAL - SCOPE OF APPLICATION
1.1 The following general terms and conditions apply to all business relations between the customer and OpaaS GmbH, hereinafter referred to as "us/we". They are part of all contracts, which are concluded with the customer and are also valid for future services and offers, even if they are not agreed again separately.
1.2 Terms and conditions of the customer or third parties shall not apply and shall not become part of the contract.
1.3 We expressly reserve the right to make changes to our General Terms and Conditions by prior notification via the customer account or via the e-mail address stored as contact. If the customer does not agree to the changes, we are entitled to terminate the contractual relationship.
2. SCOPE OF SERVICES
2.1 Excluding force majeure, technical problems and other events beyond our control, our servers are available 99.8% of the time on an annual average.
2.2 A fixed IP address is assigned for the service area "OpaaS Dedicated Hosting". However, customers of the "OpaaS Shared Hosting" are not entitled to have the same IP address assigned to the server for the entire contract period.
2.3 Unless otherwise agreed, the service includes a data transfer volume of 100 gigabytes per month. The data transfer volume utilized shall be calculated from 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 shall be 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.
2.4 Unless otherwise agreed, a total storage volume of 4 gigabytes shall be available for all e-mail addresses per virtual mailbox. Up to 300 e-mail addresses are permitted per instance.
3. CONCLUSION, DURATION AND TERMINATION OF THE CONTRACT
3.1 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.
3.2 The customer assures that the data provided by him are correct and complete. Changes must be communicated in writing without delay.
3.3 Unless otherwise agreed, the contracts shall be concluded for a minimum period of 12 months and may be terminated by either party with 30 days' notice to the end of the contract term. In the absence of termination, the contract shall be extended by a further year at the end of the respective year.
3.4 We reserve the right to terminate the contractual relationship without notice for good cause, for example,
3.4.1 if the customer, despite a reminder with a deadline, is in arrears for longer than one month with a payment that exceeds one month's amount,
3.4.2 if the customer, in particular in accordance with Clause 5.2, significantly endangers our technical equipment and facilities or impedes their functionality,
3.4.3 if the customer uses our technical equipment and facilities for legal violations and does not immediately cease such violations after becoming aware of them.
3.5 Any termination must be made in writing by e-mail to be effective.
4. TERMS OF PAYMENT AND DEFAULT
4.1 The hosting services contracted 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 at most once a year, starting in July of each calendar year. The adjustment may not exceed the increase of the consumer price index (CPI) in the ratio value January/current year to value January/previous year.
4.3 Depending on the contractual agreement, an annual settlement shall be made 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, even without a reminder, to charge interest on arrears from the due date. The amount shall be determined in accordance with the provisions of § 288 BGB.
4.5 In the event of return debit notes, we shall charge a processing fee currently amounting to 8 euros per debit note plus the bank charges incurred by us. Should a higher amount be stated in our respective valid price list, this will be charged.
4.6 If the data transfer volume included in our hosting is exceeded by more than 10% in each of two consecutive months, the contract shall be continued in the next higher tariff according to the price list. We will inform the customer about the change to a higher tariff. Amounts paid by the customer in advance for the old tariff shall be offset against this increase.
4.7 The customer may only offset our claims against undisputed or legally established claims.
4.8 Invoices shall be issued exclusively in electronic/text form.
5. ADMINISTRATIVE RIGHTS AND OBLIGATIONS / DATA SECURITY
5.1 For the service area “OpaaS Dedicated Hosting" the customer has full and sole administration rights. These must be administered and secured by him at his own expense and risk.
5.2 Upon obtaining 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 prohibited to use the servers for (d)DOS attacks or to operate open mail relays or other systems on the server that can perform these actions. In case of violations we reserve the right - without prior notice - to block the server and to terminate the contract without notice.
5.3 For the service area "OpaaS Shared Hosting" the customer is only granted a simple usage authorization. Thereby the servers are monitored by us 24 hours a day for failures as well as a free customer support for simple services is provided. More extensive services from 15 minutes of working time will be charged by us, after prior consultation with the customer, at a flat service fee.
5.4 The customer is obliged to use the provided services properly and to refrain from abusive and illegal actions. Violations of the law are to be stopped immediately after they become known and are brought to the attention of the customer. We shall be entitled, even in cases of suspicion, to temporarily block access to the customer's data if claims are or can be asserted against us by third parties and our interest in
5.5 The customer shall have the right to request that we temporarily block access to the customer's data, even in cases of suspicion.
5.5 The customer is responsible for a regular backup (backup copy) of his data, outside the server provided by us, at his own discretion.he will ensure that the backup copies can prevent a loss of data with a reasonable recovery effort or data can be restored with a reasonable effort. Insofar as data is transmitted to us, the customer undertakes to make regular backup copies thereof. The customer is obligated to perform a complete data backup prior to each change made by himself or by a third party. In the event of a loss of data that nevertheless occurs, the customer shall be obligated to transmit the relevant data files to us again free of charge or to restore them.
6. DATA PROTECTION
6.1 Data processing is carried out in accordance with the legal regulations on data protection and data security. For more information on data processing and our data protection practices, please refer to our Privacy Policy, available at www.opaas.cloud/datenschutz
6.2 If the customer wishes to process personal data of third parties with our services, the customer alone remains the responsible party in the sense of data protection law. We only process personal data as a processor pursuant to Art. 28 DSGVO if a corresponding contract for commissioned processing exists between us and the customer. Such a contract is not concluded automatically. We offer the Customer to conclude such a contract for commissioned processing, possibly supplemented by EU standard contractual clauses, especially if the service has a reference to a third country.
6.3 It is incumbent on the Customer to inform us about the type of data processed by it, in particular whether it is personal data of third parties, for what purpose these data are processed and to which categories these data can be assigned. As long as we do not have a contract for commissioned processing with the relevant information from the customer, we assume that no personal data of third parties are processed with our services and do not take any further measures with regard to data protection provisions.
6.4 We point out that data protection during data transmission on the Internet, according to the current state of the art, cannot be fully guaranteed. 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, non-transferable, 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 is authorised to grant third parties a contractual right of use to its commissioned services 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 co-operation of the third party is required for changes of any kind, the customer shall ensure that all statutory 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 fulfil 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 legal 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 claims of third parties arising from violations of these obligations.
9.2 The customer undertakes not to publish any content which infringes the rights of third parties or otherwise violates applicable law. This includes in particular, but is not limited to, pornographic or obscene material, extremist content or content that offends common decency, gambling, material that could 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 disparagement of persons or groups of persons.
9.3 The sending of spam mails is prohibited. This includes in particular the sending of inadmissible, unsolicited advertising to third parties. When sending e-mails, it is also prohibited to 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, plotting, of cryptocurrencies. In case of non-compliance, we are entitled to block access.
9.4 If we become aware of illegal actions according to § 10 TMG, we are obligated to request the customer to immediately remove the offending content and/or are entitled to block access.
9.5 If the customer violates the obligations mentioned in clause 8, in particular legal prohibitions and morality, with his content, he shall be liable to us for compensation of all direct or indirect damages resulting therefrom, including financial damages. In addition, the customer undertakes to indemnify us against claims by third parties - irrespective of the legal basis - resulting from him or the third parties designated by him, to indemnify us. The indemnification obligation also includes all legal defense costs incurred.
10.1 We shall be liable without limitation insofar as the cause of the damage is based on an intentional or grossly negligent breach of duty by us or our legal representative or vicarious agent. We shall be liable for the slightly negligent breach of material obligations. A material obligation is an obligation whose breach jeopardises the achievement of the purpose of the contract or whose fulfilment is essential for the proper performance of the contract and on whose fulfilment the customer regularly relies. In this case, however, we shall only be liable for the foreseeable damage typical of the contract. We shall not be liable for the slightly negligent breach of other obligations, in particular secondary obligations.
10.2 The above limitations of liability under Clause 9.1 shall not apply in the event of injury to life, limb or health, for a defect following the assumption of a guarantee for the quality of our services and in the event of fraudulently concealed defects. Liability under the Product Liability Act also remains unaffected.
10.3 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.
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 laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and international private law.
11.2 The exclusive place of jurisdiction, including international jurisdiction, for all disputes arising from the contractual relationship shall be our registered office in Olpe. However, we shall be entitled in all cases to take legal action at the customer's place of business. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
11.3 Should any provision be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The same shall apply if and to the extent that a loophole should become apparent in this contract. Instead of the invalid or unenforceable provision, an appropriate provision shall apply which, as far as legally possible, corresponds to the sense and purpose of the invalid or unenforceable provision or to the presumed intention of the parties, if they had considered this point.
