§ 1 General
(1) These Terms and Conditions shall apply to all legal relationships of the sole proprietorship Martin Becker Software, owner Martin Becker, Blockkamp 13, 29351 eldingen, hereinafter: "Martin Becker Software", towards its customers.
(2) Deviating regulations of the customers do not apply, unless Becker Software has confirmed this in writing. Individual agreements between Martin Becker Software and the customers always have priority.
(3) The business relations between Martin Becker-Software and the Customers shall be governed by the laws of the Federal Republic of Germany. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence. The application of UN sales law is excluded.
(4) The Customer may retrieve, save and print the order overview and these General Terms and Conditions. Apart from that, the text of the contract is not saved by the provider after the conclusion of the contract and is therefore not accessible. The contract language is German.
(5) The place of jurisdiction shall be Celle, insofar as the customer is a merchant or a legal entity under public law or a special fund under public law. The same shall apply if a customer does not have a general place of jurisdiction in Germany or if the customer's place of residence or habitual abode are unknown at the time the action is brought.
(6) Insofar as the General Data Protection Regulation (DS GVO) applies to the personal data entered or used by customers, the separate order processing agreement shall be considered an integral part of these Terms and Conditions. In the event of a conflict between the commissioned processing agreement and these General Terms and Conditions, the provisions of the commissioned processing agreement shall take precedence. Regulations on commissioned processing must always be drawn up in writing or in an electronic format
(7) Consumers have the option to use an alternative dispute resolution. The following link of the EU Commission (also called OS platform) contains information about online dispute resolution and serves as a central contact point for the out-of-court settlement of disputes arising from online sales contracts or online service contracts: http://ec.europa.eu/consumers/odr.
(8) Duty to inform according to the Consumer Dispute Settlement Act (§36 VSBG): Martin Becker-Software is neither willing nor obliged to participate in further dispute resolution proceedings before a consumer arbitration board.
§ 2 Subject of the service
(1) Martin Becker-Software offers via the website www.becker-software.de customers the provision of server storage space in the server facilities of Martin Becker-Software for the operation of an Internet site and/or the use of e-mail mailboxes.
(2) The customer is entitled to freely use this storage space within the scope of the purpose of the contract and in accordance with the following provisions. Unless otherwise agreed, the customer shall be responsible for uploading the data.
(3) Martin Becker-Software offers the use of the Services in different tariffs. The details, in particular storage size, number of e-mail addresses and combinability of the offers are presented on the Website.
(4) As an additional service, Martin Becker-Software offers an online remote maintenance service (EDP service) for a fee upon request. Technical support services are not included in the offers and will be charged separately.
(5) Insofar as Martin Becker-Software provides additional services and performances outside the contractual agreement free of charge, these may be discontinued at any time. There shall be no claim to continuation of these services, nor shall there be any claims for reduction or damages.
§ 3 Services and Duties of Martin Becker-Software, Availability of the Service, Maintenance Work
(1) Martin Becker-Software shall provide the Customer with storage space on any storage medium of Martin Becker-Software for use. Martin Becker-Software is entitled to make its physical server available to other customers as well. However, the storage space provided to the Customer under the contract shall be separated so that it appears to third parties as an independent server (so-called virtual server). The contents stored on the server are backed up daily on computers serving as backups. There is no guarantee of a successful data backup to the backup server.
(2) The upload of data to the virtual server is done via ftp.
(3) The Customer shall be granted access to the virtual server in order to independently save, change, amend or delete its Internet pages and e-mails. For this purpose, Martin Becker-Software assigns user name and password to the customer.
(4) Martin Becker-Software undertakes to provide the connection and to make proper efforts to establish the connection to the Internet, so that the virtual server is responsive to incoming requests and the customer's data can be retrieved, and, if appropriate functions of the Internet site exist, customer data can be stored. Martin Becker-Software points out that due to limited performance capacities and transmission speeds no trouble-free access to the Internet can be provided. Martin Becker-Software therefore assumes no obligation to ensure the existence of a certain data transmission speed at all times.
(5) Access impairments within the usual scope do not constitute a breach of Martin Becker-Software's obligation to perform. Martin Becker-Software will promptly remedy any disruptions to its technical facilities within the scope of existing technical and operational possibilities. Necessary service interruptions for preventive or necessary maintenance work will be announced as soon as they are known and as early as possible.
§ 4 Domain
(1) Insofar as the procurement and maintenance of domain names is the subject matter of the contract, the registration shall take place at a suitable location to be freely selected by Martin Becker-Software as an approved registrar, intermediate registrar or directly. In the procurement and/or maintenance of Internet domains, Martin Becker-Software shall only act as an intermediary in the relationship between the customer and DENIC or another organization for domain allocation. The different top-level domains are administered by a multitude of different, mostly national organizations. Each of these domain-assignment organizations has established different conditions for the registration and administration of top-level domains, the associated sub-level domains and the procedure to be followed in the event of domain disputes. Insofar as top-level domains are the subject matter of the Agreement, the corresponding terms and conditions of the respective organization shall apply in addition. Insofar as .de domains are the subject matter of the contract, the following shall apply in addition to the DENIC Domain Terms and Conditions and the DENIC Domain Guidelines.
(2) Martin Becker-Software has no influence on the domain allocation of such bodies. Martin Becker-Software does not guarantee that the domains applied for on behalf of the Customer will be allocated at all and/or that allocated domains are free of third party rights or will last in the long run.
(3) The customer guarantees that the domain applied for by him does not violate any rights of third parties. This applies in particular with regard to brand names, company and name rights as well as industrial property rights. Furthermore, the customer guarantees that the domain applied for and/or its use neither violates criminal and/or fine regulations nor infringes other legal regulations. The Customer shall fully indemnify Martin Becker-Software as well as the other persons involved in the registration process and the ongoing domain maintenance from any claims for compensation by third parties as well as any expenses based on the unauthorized use of a domain name by the Customer or with the Customer's approval.
§ 5 Conclusion of contract
(1) The contract is concluded upon acceptance of the Customer's order on the Website by Martin Becker-Software. Before placing an order, the Customer must register in the online store and indicate whether he is a consumer or an entrepreneur. Price markings in the online store do not constitute an offer in the legal sense. Before binding submission of his order, the customer can correct all entries continuously using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual keyboard and mouse functions. Martin Becker-Software is entitled to accept the offer made by the order within 2 days by sending an order confirmation. The receipt and acceptance of the order will be confirmed to the Customer by e-mail. With this confirmation, Martin Becker-Software will also send the text of the contract as well as these General Terms and Conditions, including the cancellation policy, to those customers who have registered as consumers.
(2) A customer also has the option to inquire by e-mail with Martin Becker-Software about a specific service. Upon receipt of such an inquiry, Martin Becker-Software will separately submit an offer to the Customer by e-mail. A contract shall only be concluded if the Customer accepts this offer.
§ 6 Terms of payment
(1) Unless otherwise contractually agreed, the prices stated on the Website shall apply to the services offered by Martin Becker-Software. These result from the respective current price overview.
(2) The respective fees shall be due for immediate payment without deduction upon invoicing. Unless otherwise agreed, invoicing shall be based on the tariff ordered in each case (according to the current price overview), but shall be carried out at least on a monthly basis, and annually for domains. The calculation of the first month takes place proportionately from the beginning of the contract, for each day 1/30 of the monthly price is calculated proportionately.
(3) Line and communication costs (telephone charges) between the Customer and the connection point to Martin Becker-Software shall be borne by the Customer.
(4) Unless expressly stated otherwise, the prices quoted are gross, including the applicable value added tax.
(5) The remuneration shall be paid in each case within 10 days of invoicing. Payment of the remuneration shall be made in advance (at the request of the customer by bank transfer or payment via PayPal).
(6) Martin Becker-Software is entitled to activate a domain only after payment of the fees agreed upon for the registration.
(7) If a Customer defaults on its payment obligations, Martin Becker-Software is entitled to demand default interest in the amount of 5 percentage points above the respective statutory base interest rate per annum. Martin Becker-Software reserves the right to assert further claims due to default of payment. In particular, Martin Becker-Software is not obligated to provide further advance services if the customer has been in default of payment of an amount equal to at least one monthly basic fee for at least four weeks.
(8) Martin Becker-Software will always issue an invoice to the Users, which will be sent to them in text form (by e-mail) with the confirmation of the respective order.
§ 7 Term, termination of contract, notice of termination
(1) The minimum contract period is 1 month. For the booking of domains it is one year.
(2) If the contract has been concluded for a definite period of time or if a minimum contract period has been agreed with the customer, the contract shall be extended in each case by the agreed period of time or minimum contract period, but by no more than one year, unless it is terminated with four weeks' notice to the respective expiry of the definite period of time or expiry of the minimum contract period.
(3) After expiration of the minimum contract period, the contractual relationship may be terminated by either party with 30 days' notice to the end of the month.
(4) A contractual relationship running for an indefinite period of time may be terminated by either party without giving reasons by giving 30 days' notice to the end of the month.
(5) Different periods of notice may apply to special and promotional offers (in particular offers with annual payment); these will be pointed out separately before the contract is concluded.
(6) Martin Becker-Software is entitled to release the Customer's domain after termination of the contract. At the latest with this release, all rights of the Customer arising from the registration shall expire.
(7) After termination of the contract, unused remuneration shall be refunded to the customer on a pro rata basis. All data will be blocked after termination or expiration of the service period and finally deleted after 4 weeks. The customer is responsible for making backup copies of the e-mails and website data, as well as for the server move to another provider.
(8) The right to extraordinary termination for good cause shall remain unaffected.
(9) Notices of termination must be in writing to be effective.
§ 8 Rights of retention
The customer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
(1) The Customer grants Martin Becker-Software those copyright reproduction rights and other authorizations to its data that are necessary for the performance of this Agreement.
(2) The Customer warrants that the data provided by it to Martin Becker-Software is correct and complete. The Customer undertakes to notify Martin Becker-Software without undue delay of any changes to the data provided and, upon request by Martin Becker-Software, to reconfirm the current accuracy within 15 days of receipt.
(3) The Customer is obligated to use the Martin Becker Software Services properly and for the intended purpose. In particular, it is obliged to,
a. not to misuse the access options to the Martin Becker-Software - Services and to refrain from illegal and/or unlawful actions. In particular, the Customer is prohibited from making unauthorized use of the services of other participants in the Martin Becker Software Services, from making unauthorized use of services not agreed upon in the contract between Martin Becker Software and the Customer, from using passwords, e-mails, files, etc. of other participants in the Martin Becker Software Services or of the system operator. The Customer shall not be entitled to decrypt or change passwords, e-mails, files, etc. of other participants of the Martin Becker-Software Services or of the system operator, to distribute individual applications of licensed application software via the Martin Becker-Software Services without authorization, to interrupt or block communication services, e.g. due to overloads, insofar as the Customer is responsible for this, to distribute or make accessible criminal content of any kind via Martin Becker-Software Services. This applies in particular to pornographic content, content glorifying violence or content that is directed against the free democratic basic order or the idea of international understanding, as well as propaganda material and symbols of unconstitutional parties and associations or their substitute organizations, to obtain pornographic content for oneself or third parties that has as its object the sexual abuse of children. The customer is also prohibited from sending mass e-mails or spam e-mails from an account with Martin Becker-Software to recipients without their express consent.
b. to ensure compliance with legal regulations and official requirements, insofar as these should be relevant for the use of the services of Martin Becker-Software at present or in the future;
c. take into account and comply with the applicable provisions of data protection and the recognized principles of data security. The Customer shall, at reasonable intervals, check data uploaded from the Internet that is accessible to third parties for its lawfulness. If the customer does not delete or block such data immediately, he is responsible for the content in relation to Martin Becker-Software as if it were his own data. The Customer is also obligated to protect its computers and software with appropriate and up-to-date virus software. The customer shall inform Martin Becker-Software immediately if he has any indication that unauthorized third parties are aware of the access data/passwords;
d. To notify Martin Becker-Software without undue delay of any recognizable defects or damage (malfunction reports) and to take all measures to enable the defects or damage and their causes to be determined or to facilitate and accelerate the elimination of the malfunction;
e. after submitting a malfunction report, to reimburse Martin Becker-Software for the expenses incurred by the inspection of its facilities if and to the extent that it turns out after the inspection that a malfunction occurred within the Customer's area of responsibility (outside the defined scope of contract and services).
(4) If the Customer violates the obligations specified in paragraph 3 lit. a) and b), Martin Becker-Software is entitled to terminate the contractual relationship without notice immediately and in other cases after unsuccessful warning.
(5) In the cases of paragraph 3 lit. b), Martin Becker-Software is authorized, in addition to the right to termination without notice, to block access to the service resulting from the scope of services with immediate effect upon becoming aware of a violation of the Customer in the manner set forth therein.
(6) It is the Customer's responsibility to make sufficient backup copies of its Internet pages and other data. If the Internet site transfers data of the users of its Internet offer to the Customer or if the Customer otherwise has access to such data, the Customer shall be responsible for regularly backing up such data, whereby data stored on the servers of Martin Becker-Software may not be backed up on such servers. The Customer shall perform a complete data backup in particular prior to any commencement of work by Martin Becker-Software or prior to the installation of delivered hardware or software. The Customer is expressly advised that even minor changes to the Software may affect the ability of the entire system to run. The data recovery by Martin Becker-Software is liable to pay costs, for this a separate agreement is concluded.
(7) The customer is obliged to comply with the provisions of the provider identification according to § 5 TMG, as well as all other applicable provisions in the currently valid version.
§ 10 Use by third parties
The subletting of the storage space to third parties, so-called reselling, is only permitted with the prior express written consent of Martin Becker-Software. In the event of such consent, the provisions of these GTC shall be imposed on the third party. The Customer shall be liable to Martin Becker-Software for the third party's compliance with these GTC in the same way as the Customer would be liable for its own compliance.
§ 11 Blocking of Access by Martin Becker Software
Martin Becker-Software is entitled to temporarily interrupt the connection of the server to the Internet (blocking of the Internet site) if it becomes aware that posted contents are illegal or if there is sufficient suspicion of illegality. A sufficient suspicion of illegality is given in particular if Martin Becker-Software receives a warning from the allegedly infringed party or if otherwise a claim is made against Martin Becker-Software for injunctive relief due to illegality of the posted content and the warning and/or the request for injunctive relief are not obviously unfounded. As far as possible, the customer is to be heard beforehand, otherwise he is to be informed immediately. The blocking has to be limited to the possibly illegal contents, as far as this is technically possible and reasonable.
§ 12 Liability and indemnification obligation of the customer
(1) As soon as the Customer becomes aware of an infringement of the rights of third parties or if it has any indications in this respect, it shall be obliged to inform Martin Becker-Software without undue delay. The Customer agrees to indemnify and hold Martin Becker-Software harmless from and against any and all claims asserted against Martin Becker-Software in connection with the Customer's use of Martin Becker-Software's services, including, but not limited to, any possible infringement of third party rights or statutory provisions. Furthermore, the Customer is obligated to indemnify Martin Becker-Software for all other damages and expenses incurred by Martin Becker-Software in connection with the Customer's use of its services in violation of the contract or the law, in particular by asserting claims for possible infringements by third parties. The indemnification obligation also includes, in particular, the obligation to indemnify Martin Becker-Software from necessary legal defense costs.
(2) The Customer shall be liable for all consequences and disadvantages incurred by Martin Becker Software or third parties as a result of the misuse or illegal use of the Martin Becker Software Services or as a result of the Customer's failure to comply with its other obligations.
§ 13 Liability for defects of quality and title
(1) Martin Becker-Software warrants the function of the server within the scope of the specifications stated in the contract. To the extent that Martin Becker-Software provides the Customer with storage space in its server facilities, any strict liability for initial defects shall be excluded. Otherwise, the warranty shall be provided by way of rectification of defects.
(2) If a disruption of the Martin Becker Software Services that is substantial lasts longer than one week and an actual downtime period of more than one business day is reached, the Customer is entitled to reduce the monthly fees and charges accordingly from the time the disruption occurs until the disruption ceases. A significant impediment exists if
a. the Customer is no longer able to access the Martin Becker Software Infrastructure for reasons for which the Customer is not responsible or for which a third party is responsible and, as a result, is no longer able to use the Services listed in the Agreement; and
b. the use of these services as a whole is significantly impeded or the use of individual services listed in the contract becomes impossible or comparable restrictions exist.
(3) In case of failure of services due to a malfunction outside the responsibility of Martin Becker-Software, the reduction is excluded. The same applies to the failure of services due to necessary business interruptions (maintenance work) pursuant to § 3 of the GTC.
(4) Martin Becker-Software is not responsible for the Customer's data, in particular the proper functioning of the Internet Site within the server and system environment of Martin Becker-Software. To the extent that the Internet Site places requirements on the server or the pre-installed software beyond the contractually agreed server configurations, it shall be the Customer's responsibility to ensure that such requirements are realized. Martin Becker-Software reserves the right to refuse the realization of such requirements or to make them dependent on further technical changes, also at the Customer's expense.
(5) The Customer shall be responsible for immediately notifying Martin Becker-Software of any malfunctions that may have their cause in the area of responsibility of Martin Becker-Software and for supporting Martin Becker-Software in determining the causes and in eliminating them to a reasonable extent, as well as for taking all reasonable measures to prevent and mitigate damages.
§ 14 Limitations of liability
(1) Insofar as telecommunications services are provided to the public on the basis of this contract (§3 No.24 TKG), the provider shall have limited liability pursuant to §44a TKG.
(2) Outside the scope of application of § 44a TKG, Martin Becker-Software shall be liable for defects of quality and title in accordance with the statutory provisions.
(3) Apart from the liability according to paragraph 1 and outside the liability for material defects and defects of title, Martin Becker-Software shall be liable without limitation to the extent that the cause of damage is based on intent or gross negligence. Martin Becker-Software shall also be liable for the slightly negligent breach of essential obligations (obligations, the breach of which endangers the achievement of the purpose of the contract) and for the breach of cardinal obligations (obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the Customer regularly relies), but in each case only for the foreseeable damage typical for the contract. Martin Becker-Software is not liable for the slightly negligent breach of other obligations.
(4) The limitations of liability of the preceding paragraph shall not apply in case of injury to life, body and health, for a defect after assumption of a guarantee for the quality of the product and in case of fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.
(5) If the liability of Martin Becker-Software is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
§ 15 Secrecy /Data protection
(1) Martin Becker-Software shall treat any information it receives from the Customer prior to and within the scope of the contract as confidential. Martin Becker-Software declares that its employees acting within the scope of this contract have been bound to confidentiality.
§ 16 Amendment of the GTC