§1 - Area of applicability
These general terms and conditions of business are part of all contracts between myLoc managed IT AG, Am Gatherhof 44, 40472 Düsseldorf, Germany (hereinafter: myLoc) with a contracting partner as defined in § 3 (hereinafter: Customer) in relation to services in the area of the subject matter of the contract referred to in § 2. The respective valid version at the time of conclusion of the contract shall be decisive. Deviating terms and conditions of the Customer shall not become part of the contract, unless myLoc expressly agrees to their applicability in writing. Deviating provisions in the offer and service description, including any service level agreement (hereinafter referred to together as: service description) shall take priority over the clauses of these general terms and conditions of business.
§2 - Subject matter of the contract
myLoc operates premises which are connected to the Internet (IT centre). In the IT centre, the Customer can set up its own Internet servers (co-location) or use servers, storage space or computing power provided by myLoc (hosting). In addition, myLoc offers additional services in connection with the operation and use of servers (services). In particular, the subject matter of the contract may be:
- Co-location: myLoc provides storage space (rack or cage) for Customer´s own server hardware, as well as an electricity and Internet connection;
- Managed hosting: The Customer can use one of myLoc’s pre-configured, dedicated or virtual servers;
- Server hosting: The Customer can use one of myLoc’s dedicated or virtual servers, whereby the Customer is fully responsible for the configuration (root server);
- Cloud hosting: The Customer can use myLoc’s pre-configured software as a service (SaaS) and infrastructure as a service (IaaS) products;
- Internet domains: The Customer can have Internet domains registered at the respective registry via myLoc.
- SSL certificates: The Customer can order certificates for encrypted data transfer via myLoc.
The specifics concerning the scope of service are stated in the respective service description.
§3 - Contracting Partner
myLoc concludes contracts both with private and commercial customers. Commercial customers include legal persons under public law, public law special funds and entrepreneurs. An entrepreneur is a natural or legal person or a partnership with legal capacity which is acting in the performance of its commercial or independent professional activities at the time of conclusion of a legal transaction. By contrast, a private customer as defined in these general terms and conditions of business is any person who is not a commercial customer. Therefore private customers also include consumers. A consumer is any natural person who concludes a legal transaction for purposes which cannot primarily be attributed to the consumer’s commercial or independent professional activities. myLoc only concludes co-location contracts with commercial customers.
§4 - Conclusion of the contract
- The representation and promotion of services by myLoc does not, as a rule, yet represent a binding offer to conclude a contract. Rather by means of its order, the Customer is submitting a binding offer to myLoc to conclude a contract (contractual offer). The order is placed either in electronic or paper form.
- In electronic form, the order is placed via the myLoc website by clicking the button labelled either “Submit Binding Order” or corresponding clear formulation. Before clicking this button, the Customer can end the order process at any time. The Customer can see any entry errors on the associated overview page, can return to the respective order stage by clicking the back button in its web browser and correct the error there. myLoc does not save the contractual text as such (and therefore does not make the contractual text accessible to the Customer after conclusion of the contract). However the Customer can save the contractual text or print it out by using the corresponding function of its browser on the overview page; the same applies to these general terms and conditions of business and the respective service description.
- In paper form, the order takes place by means of the Customer sending the completed and signed order form to myLoc. The corresponding form and the associated service description can be accessed by the Customer via the myLoc website or the Customer can request these from myLoc. A contract form can be used instead of an order form.
- myLoc will confirm receipt of the order to the Customer by email (confirmation of receipt). As a rule, the confirmation of receipt does not yet represent a binding acceptance of the contractual offer by myLoc. Rather, the acceptance of the offer takes place either by means of a separate notification by myLoc (contractual confirmation) or by means of myLoc recognisably commencing the provision of services to the Customer. In addition, the sending of an invoice or other payment request by myLoc shall represent an acceptance of the offer. The sending of an invoice or payment request can take place at the same time as the confirmation of receipt. In such a case, the confirmation of receipt is also the contractual confirmation.
- The contractual language is German.
§5 - Right of revocation
As a rule, a customer who is a consumer (see § 3) has a statutory right of revocation. A customer who is not a consumer is not entitled to this right of revocation. myLoc shall inform the Customer separately of the right of revocation. However such a notification of a right of revocation does not represent a contractual right of revocation in relation to a customer who is not a consumer.
§6 - Prices and payment
- All price statements by myLoc in relation to private customers (see § 3), in particular those on the myLoc website, shall be considered to be end prices inclusive of the statutory value added tax, should this be payable. By contrast, price statements by myLoc which are obviously intended for commercial customers (see § 3) are net in case of doubt, i.e. excluding value added tax; therefore value added tax will be added to the stated prices, should this be payable (gross). Additional costs, i.e. those which are not stated in the order overview or the order/contract form, shall not as a rule be incurred in connection with the order.
- In case of doubt, the payment of one-off fees shall be made at the time of conclusion of the contract. The payment of recurring fees is due monthly in advance. Invoicing shall take place via email to the address stated by the Customer. A fee of EUR 3.50 per invoice shall be payable if invoices are sent by post, which myLoc only carries out upon request by the Customer. Invoicing is not necessary for the Customer to enter default. This does not apply in relation to the value added tax to be charged in the invoice if the Customer is entitled to deduct input tax. If the Customer enters payment default, myLoc shall be entitled, in accordance with the statutory regulations, to withhold the further provision of services. In particular, this means that myLoc can shut down the Customer’s Internet pages, cease to make the data stored on the servers available and no longer renew domains. Further rights of myLoc shall remain unaffected.
- Objections which concern use-dependent fees in the invoices (for example for traffic) must be raised by the Customer within an exclusion period of six weeks following the receipt of the respective invoice. Otherwise, the invoicing of the said fees shall be deemed to have been approved by the Customer. This shall not apply, if myLoc acts fraudulently during the invoicing process or has not informed the Customer of the exclusion period once again in the invoice.
- Unless otherwise agreed, the payment shall be made cash free via SEPA transfer to the business account of myLoc. If the payment is made by direct debit or credit card, the Customer must ensure there are sufficient funds in the relevant account. If it is not possible to collect a direct debit or to charge the credit card (return of payment), the Customer is obliged to pay fixed compensation of EUR 10. This shall not apply if the Customer is not responsible for the return of payment. Otherwise, the Customer is free to provide proof that no loss was incurred by myLoc or that the loss is significantly lower than the fixed amount. Conversely, myLoc is entitled to provide proof of a higher loss.
§7 - Contractual term and termination
- The term of the contract shall correspond to the period of time which is stated in the service description and/or the period of time which the Customer selected at the time of its order (minimum term). In the case of contracts in relation to a domain, the minimum term is generally one year. If the contract is not terminated or is not terminated in line with the notice period, it shall be extended each time by the minimum term, however for no more than one year (automatic contract extension). Unless otherwise agreed, the notice period for contracts with a minimum term of up to one year shall be 4 weeks and for contracts with a minimum term of one year or more, the notice period shall be 3 months.
- As a rule, termination is required in text form (e.g. letter, fax, email). However, if the Customer is a commercial customer (see § 3), termination is required in written form (i.e. as text form but including a signature), whereby transfer of the signed declaration by telecommunication shall suffice.
- The right to terminate this contract prematurely for cause shall remain unaffected. In particular, cause exists for myLoc if the Customer is in default for an amount of one monthly payment for more than 4 weeks or in default for a lesser sum for more than 6 weeks. Cause for premature termination also exists for myLoc if the Customer significantly or repeatedly breaches other obligations under the contract, in particular following a warning by myLoc.
- The Customer is aware that the expenses and costs for the provision of storage space, servers or parts thereof will be included in the fee and minimum term. The Customer is also aware that the expenses and costs of myLoc in the case of domains are almost exclusively incurred due to their registration and extension. If a contract whose minimum term has not yet been reached is terminated prematurely for cause by myLoc, the Customer must pay 50% of the fee which would have been payable until the time the minimum term was reached. If this involves the fee for a domain, the full amount up to the actual end of the term is due, regardless of whether the minimum term of the contract has already been reached. This shall not apply if the Customer is not responsible for the cause for which myLoc terminates the contract prematurely. Otherwise, the Customer is free to provide proof that no loss has been incurred by myLoc or that the loss is significantly lower than the calculated amount. Conversely, myLoc is entitled to provide proof of a higher loss. Further rights of myLoc shall remain unaffected.
- At the end of the contract, myLoc will block the Customer’s login data and suspend the contractual services. This means that web pages, emails and other data which the Customer has saved on the myLoc servers will be deleted. The Customer’s Internet domains will no longer be extended. This means that they will expire and will be deleted or returned to the competent registration body. The Customer is aware that the respective domain may be permanently lost if a third party registers this following the deletion or return.
- However, prior to the end of the contract, the Customer has the option of transferring its domains to another provider (transfer). If a domain is transferred to another provider, the Customer shall apply to myLoc for this in good time in text form, i.e. at the latest two weeks prior to the end of the contract. The Customer is aware that the co-operation of the Customer and/or the other provider is necessary for the transfer of a domain, depending on the requirements of the respective registration body. If this co-operation does not take place or does not take place in good time, with the result that the domain remains with myLoc beyond the end of the term, the domain will be charged to the Customer for a further year. This shall not apply if the Customer is not responsible for the lack of timely co-operation. Otherwise, the Customer is free to provide proof than no loss has been incurred by myLoc or that the loss is significantly lower than the calculated amount. Conversely, myLoc is entitled to provide proof of a higher loss. Further rights of myLoc shall remain unaffected.
§8 - Rights and obligations
- Login data (such as user name and password) which the Customer receives from myLoc shall be kept confidential by the Customer and shall be protected against third party access. The Customer shall be responsible for all actions carried out under the said login data. This shall not apply if the respective action was carried out by an unauthorised third party without the Customer being responsible for such, in particular where the Customer has complied with its confidentiality and protection obligation in a proper manner.
- Prior to saving all data which it stores on the myLoc servers, the Customer shall make a back-up copy. Data which is altered on the myLoc servers or which is initially created there shall also be backed up by the Customer at regular intervals. The backups themselves may not be stored on the myLoc servers.
- In the case of a co-location contract where the Customer sets up its own hardware in the myLoc IT centre, the Customer shall issue myLoc with a contractual right of lien in relation to the hardware which has been set up. The purpose of the lien is to secure the claims of myLoc against the Customer under the contract. The Customer is aware that the hardware which has been set up is not insured by myLoc. To this extent, the Customer is responsible for taking out any insurance. In all cases, the Customer shall take out liability insurance which covers personal injury, property damage and financial losses caused by the Customer or its hardware in the myLoc IT centre with a sum insured of at least EUR 1 million (one million euros). On myLoc’s request, the Customer shall provide proof of the existence of the said insurance. The Customer is solely responsible for the maintenance of its hardware.
- Except in the case of co-location, myLoc is entitled to carry out changes to the server configuration, if these become necessary from a technological or legal point of view or are otherwise required due to technological progress. However, such an alteration shall not limit the contractual scope of service. myLoc shall inform the Customer in good time of pending alterations, if these have noticeable effects on the Customer. The Customer is obliged to carry out alterations on its part which become necessary, provided that this is reasonable.
- The Customer is only able to have physical access to the servers in the myLoc computer centre in the case of co-location. Access is limited to the Customer’s hardware, whereby the Customer shall agree on a date and time with myLoc in advance. At the time of agreeing on the date and time, the persons who are to have access to the hardware for the Customer must be named. The persons must be able to verify their identity by means of official photo ID.
- In the case of co-location and server hosting, the Customer is solely responsible for the installation and configuration of the operating system, the server services and other software. In the case of managed hosting, the Customer will be provided with a system which has been pre-configured by myLoc. However, the Customer is also solely responsible for the installation and configuration of additional services and other software.
- myLoc shall provide the Customer with licences for Microsoft software, in particular for Windows Server, by means of a framework agreement with Microsoft for multiple licences (volume licence contract), if the Customer uses myLoc hosting services and the provision of such software for use on the server has been agreed upon. The Customer hereby assures myLoc that it will comply with the licence conditions for the use of the software. In particular, this includes the Customer only purchasing licences for the use of Microsoft software on the server via the myLoc volume licence contract. The Customer shall not use any unlicensed software or software which has not been properly licensed on the server. If the Customer breaches the licence conditions, it must reimburse myLoc in respect of the losses incurred as a result. myLoc is entitled to monitor compliance by the Customer with the Microsoft licence terms. For this purpose, the Customer shall provide myLoc with access to an administrative server which myLoc will use exclusively for the said monitoring. To this extent, myLoc is entitled in particular to permanently and automatically monitor the licence information concerning Microsoft software on the server by means of corresponding client software. If the Customer refuses to provide access or if the Customer disrupts the monitoring by the client software, this shall represent cause for premature termination by myLoc.
§9 - Legal breaches
- The Customer is aware that myLoc will not monitor the use of the server by the Customer, in particular the contents published by the Customer. myLoc will also not check prior to the registration of a domain ordered by the Customer as to whether the said domain affects third party rights. To this extent, the Customer shall reimburse myLoc for all third party claims which arise due to unlawful use of the server or use of the server which is in breach of contract by the Customer or of a domain ordered by the Customer. The Customer shall reimburse myLoc to the necessary extent in relation to the costs incurred in connection with the defence of the rights.
- The Customer shall not publish any unlawful content or otherwise use the server in an illegal manner. The publication of content which is racist, glorifies violence or contains adult content shall also be deemed to be unlawful. In the case of an obvious or proven legal breach, myLoc is entitled to prohibit the use of the unlawful server by the Customer (blocking) or to disable the unlawful domain and return it to the registration body, if necessary. If the legal breach is not obvious or proven, myLoc shall ask the Customer to make an immediate statement. If this statement is not made or if the Customer is not able to rebut the alleged legal breach, myLoc is entitled to the same rights as in the case of an obvious or proven legal breach.
- The sending of promotional emails without the express consent of the respective recipient (spam) is prohibited. The automated or mass sending of promotional messages in Internet forums or chatrooms is also deemed to be prohibited spam. For each case of a culpable breach of the prohibition of spam, the Customer must pay a contractual penalty to myLoc, the amount of which will be determined at the reasonable discretion of myLoc, whereby the setting of the contractual penalty can be verified by a court. myLoc is also entitled to carry out a blocking.
- If the server used by the Customer noticeably impair the functionality, security or availability of myLoc’s infrastructure or significantly endanger it, myLoc shall also be able to carry out a blocking for the duration of the impairment or endangerment.
- Where possible, myLoc shall warn the Customer in advance of a blocking; otherwise it shall inform the Customer of the blocking in a timely manner. No warning is necessary if the Customer has intentionally caused the reason for the blocking. If the Customer provides a remedy, myLoc will not carry out the blocking or will lift it. In relation to the expenses in connection with a blocking, myLoc will charge the Customer a fixed fee of EUR 49.00. This shall not apply if the Customer is not responsible for the reason for the blocking. Otherwise, the Customer is free to provide proof than no loss has been incurred by myLoc or that the loss is significantly lower than the fixed amount. Conversely, myLoc is entitled to provide proof of a higher loss. Further rights of myLoc shall remain unaffected.
§10 - Warranty
- myLoc hereby guarantees to the Customer an average annual availability of 99.0%. The router which connects the myLoc computer centre to the Internet shall be decisive in relation to availability (time of handover). Both disruptions to the Internet and such downtime for which myLoc is not responsible (for example force majeure) are excluded from the guarantee concerning availability. In addition, myLoc is entitled to use 1% of the availability each month for maintenance work, without this being deemed to represent a reduction of availability. Such maintenance work shall be notified to the Customer in advance where possible and carried out at night between 10 p.m. and 6 a.m.
- The Customer is aware that myLoc will only forward the data concerning the registration of a domain to the competent registration body following a request by the Customer. The forwarding shall take place by means of an automated process, whereby the question as to whether the domain is finally assigned to the Customer or not is outside myLoc’s sphere of influence. To this extent, myLoc cannot provide any guarantee concerning the allocation of an ordered domain. The same shall apply to the existence of a domain, unless myLoc is responsible for this.
- Otherwise, the statutory provisions shall apply. The limitation of liability in accordance with § 11 shall also apply to the obligation to pay damages due to defects.
§11 - Limitation of liability
- myLoc shall incur unlimited liability in the case of intent and gross negligence, for injury to life, body and health, in accordance with the regulations of the German Product Liability Act (Produkthaftungsgesetz ? ProdHG), in accordance with Section 44a of the German Telecommunications Act (Telekommunikationsgesetz ? TKG), as well as to the extent of any assurances made or any guarantees assumed by myLoc.
- In the case of a breach of an essential contractual obligation due to simple negligence, myLoc’s liability shall be limited to losses which are foreseeable and typical in accordance with the type of transaction in question. Essential contractual obligations are those which enable the proper fulfilment of the contract and on whose compliance the Customer may regularly rely.
- Otherwise myLoc’s liability to pay compensation shall be excluded, regardless of legal reason. There is no strict liability to pay damages for initial defects. This shall also apply to the personal liability of myLoc’s legal representatives, employees and vicarious agents.
§12 - Data protection
- myLoc complies with the statutory regulations concerning data protection. myLoc only processes the Customer’s personal data in order to perform the contract. This concerns such personal data which the Customer provides to myLoc during the order, via the customer centre or otherwise within the performance of the contract (in particular: name, address and email address). Alongside processing, myLoc is entitled to pass on the Customer’s personal data to third parties if this is necessary in order to perform the contract (for example to the bank for payment processing).
- The Customer can ask myLoc at any time to disclose, correct, delete, restrict processing of its personal data and to make it portable to another provider. However deletion cannot take place if the Customer’s personal data is still required in order to perform the contract or if statutory retention obligations prevent this. However where possible, the data will be blocked prior to deletion. Following the full performance of the contract and provided that statutory retention obligations no longer prevent this, myLoc will also delete the Customer’s personal data.
- Further use of the Customer’s personal data will only be made if the Customer has provided its express consent to such use. Reference is also hereby made to the data protection declaration in relation to the processing of personal data when using the myLoc website. This can be accessed via the website.
§13 - Closing provisions
- Even if individual clauses are legally invalid, the contract shall otherwise remain binding in relation to its other provisions. Where available, the statutory regulations shall take the place of the invalid clauses. However, if this would present undue hardship for one of the contracting parties, the contract as a whole shall become invalid.
- If the Customer is a businessman, legal person under public law or a public law special fund, Düsseldorf is hereby agreed as the exclusive place of jurisdiction for all claims which arise under or on the basis of the contract. The same shall apply in relation to persons who do not have a general place of jurisdiction in Germany, who relocate their place of residence or usual whereabouts to a country outside of Germany following the conclusion of the contract or whose place of residence or usual whereabouts are not known at the time proceedings are brought.
- The law of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention governing the International Sale of Goods. If the Customer is a natural person and if the Customer concludes the contract for purposes which cannot primarily be attributed to his or her commercial, business, craft or professional activities, the mandatory consumer protection provisions of the country in which the Customer is usually resident shall, nevertheless, remain applicable.
- The Customer can only offset against myLoc such claims to which it is entitled under the same contractual relationship or which are not disputed by myLoc or which have been recognised by a court. The Customer can only assert a right of retention if the counterclaims are from the same contractual relationship.
- myLoc is entitled to have the contractual services provided by third parties.
§14 - Dispute settlement procedure
The EU Commission provides an online dispute resolution platform (OS platform), which can be reached via the following link: http://ec.europa.eu/consumers/odr/ The email address of myLoc is: [email protected] However, myLoc is not obliged and not prepared to participate in dispute settlement proceedings before a consumer arbitration board.
THESE GENERAL TERMS AND CONDITIONS OF BUSINESS ARE COPYRIGHT PROTECTED VIA THE LAW FIRM DANIEL RAIMER IN DÜSSELDORF AND MAY ONLY BE USED BY AGREEMENT WITH THE LAW FIRM. INFRINGEMENTS WILL BE SUBJECT TO CIVIL ACTION AND POSSIBLE CRIMINAL PROCEEDINGS