General Terms and Conditions of DataFortress.cloud UG Preamble: DataFortress.cloud UG (hereinafter “DataFortress”), Georgenstraße 13, 86152 Augsburg, offers services in the field of web hosting. The customer (hereinafter referred to as the “Customer”) wishes to make use of these services under the following contractual conditions.
1 Conclusion of Contract and Scope 1.1 The content of the service/services owed by DataFortress in detail results from the appendices to this contract. The quantitative scope of the services is variable and can be flexibly changed by the Customer (see Section 11 below). The offers of DataFortress are not directed at consumers within the meaning of § 13 BGB (German Civil Code).
1.2 The contract is concluded by DataFortress accepting the order placed by the customer on the basis of the respective offer of DataFortress by order confirmation by e-mail (hereinafter referred to as “the contract” regardless of singular or plural).
1.3 These contractual terms and conditions apply exclusively to the contractual relationship between DataFortress and the Customer. General terms and conditions of the Customer shall not apply. Counter-confirmations of the customer with reference to its own terms and conditions are expressly rejected, insofar as such terms and conditions deviate from the present contractual terms or contain provisions that are contrary to them.
2 Subject matter of the contract 2.1 The subject matter of the contract is the provision of computer capacity, storage space (server hosting) and the making available of data for permanent retrieval from the Internet (web hosting) depending on the individual agreement between the parties in accordance with the annex hosting concept/offer/service certificate. The customer is obligated to accept the minimum quantity regulated in the Annex Hosting Concept/Offer/Service Certificate. In addition, DataFortress offers services that support or supplement the hosting and that the Customer can book separately.
2.2 Depending on the selected tariff and (optionally) the selected Service Level Agreement (“SLA”), the Customer shall be provided with dedicated or virtualized servers without or with software and various performance features defined in more detail in Annex Hosting Concept/Offer/Service Certificate.
2.3 The SLA selected by the Customer is to be taken from the appendices of the respective valid Service Level Agreements and product-specific Service Level Agreements, if applicable.
2.4 The customer shall receive access data to its customer front end, in which it can view how much power it is using. These access data must always be kept secret and may not be made available to third parties. If Customer becomes aware of any unauthorized use of its access data, Customer shall inform DataFortress immediately. The customer is solely responsible for all activities in connection with his access data.
- hosting services 3.1 DataFortress keeps the data stored by the customer in accordance with the contract (in particular his website) permanently, worldwide and basically publicly accessible on the Internet via the network maintained by DataFortress and the Internet connected to it. DataFortress does not assume any responsibility for the success of the respective access to the website, unless exclusively the network operated by DataFortress including the interfaces to third party networks maintained by DataFortress is concerned.
3.2 The customer receives access to the server of DataFortress to the extent defined between the parties. For this purpose, DataFortress provides him with appropriate certificates. The certificates are to be kept secret at all times and may not be made available to unauthorized third parties. Furthermore, they are personalized, but a customer may receive several personalized access authorizations upon request in order to allow employees access. The customer will inform DataFortress immediately if third parties have obtained his access data. In individual cases, companies affiliated with the customer are also considered third parties. The customer is solely responsible for all activities in connection with the certificates made available to him.
3.3 DataFortress enables the client to view the traffic, which is the basis for billing, via the client front end. The statistics are the basis of the monthly traffic billing, which includes the external traffic.
4 Use of Software 4.1 As far as DataFortress provides software, this is done at the interface of the data network, within which the software runs, to other networks. The software, the computing power required for its use and the necessary storage and data processing space are provided by DataFortress. The software remains on servers for which DataFortress is responsible. DataFortress is not responsible for establishing and maintaining the data connection between the Customer’s IT system and the aforementioned transfer point.
4.2 Insofar as the software runs exclusively on the servers of DataFortress or of a service provider commissioned by DataFortress, the Customer does not require any copyright usage rights to the software, nor does DataFortress grant any such rights. However, DataFortress grants the Customer, for the term of the agreement, the non-exclusive, non-transferable right, limited in time to the term of the user agreement, to load the user interface of the software for display on the screen into the main memory of the end devices used for this purpose in accordance with the agreement and to make the resulting reproductions of the user interface.
4.3 With respect to DataFortress software, the customer acquires the right to access DataFortress software to the extent stipulated in the contract during the term of the contract and to use it for the purposes stipulated in the contract.
5 Availability 5.1 The availability of the servers, if applicable, the software and the data paths up to the transfer point to the Internet is 99.5% per year less the time required for the installation of updates, upgrades, new releases and/or other modifications, unless otherwise agreed in the appendices to the respective valid Service Level Agreements and product-specific Service Level Agreements.
5.2 DataFortress draws the Customer’s attention to the fact that restrictions or impairments of the services provided may arise that are beyond DataFortress’ control. This includes, in particular, actions of third parties not acting on behalf of DataFortress, technical conditions of the Internet that cannot be influenced by DataFortress as well as force majeure. Also the hardware and software or technical infrastructure used by the customer can have an influence on the services of DataFortress. Insofar as such circumstances have an influence on the availability or functionality of the service provided by DataFortress, this has no effect on the contractual conformity of the services provided.
5.3 The Customer is obligated to notify DataFortress immediately and as precisely as possible of any functional failures, malfunctions or impairments. If the Customer fails to do so, § 536 c BGB shall apply accordingly.
6 Incident Management 6.1 An incident is deemed to exist if servers or software do not fulfill the contractual functions.
6.2 Notifications of support incidents shall be made via a ticket system, which can also be accessed at firstname.lastname@example.org. Emergencies must also be reported by telephone at +49 160 1136770 in order to ensure prompt support.
6.3 DataFortress provides support services, unless Customer has selected a more extensive SLA, only on Mondays to Fridays between 8:00 a.m. and 5:00 p.m. (“Service Hours”).
6.4 The user reporting a support case shall provide a description of the respective support case as detailed as possible with each report in order to enable DataFortress to eliminate the error as efficiently as possible.
- domain registration 7.1 As far as DataFortress takes over the domain registration for the customer, DataFortress registers the ordered domains at the responsible registry. The parties agree that DataFortress neither owes a domain search nor the success of the registration procedure.
7.2 DataFortress does not carry out any legal or content-related examination of the domains to be registered. In particular, DataFortress does not assume any examination as to whether and to what extent a registration is actually or legally possible and permissible. The customer has to carry out the corresponding checks himself or have them carried out. The customer is responsible for checking which registration rules apply at the respective registry.
- rights to individual work results Insofar as DataFortress develops individually protectable contents for the customer (for example scripts or certificates), DataFortress grants the customer an exclusive right of use to the order results individually developed and/or provided for the customer (“work results”). DataFortress transfers to the customer the exclusive, content, temporally and spatially unlimited and irrevocable right of use to these work results for all known and unknown types of use, including the right to process the work results in any way.
9 Obligations of the Customer 9.1 The Customer undertakes vis-à-vis DataFortress to perform the acts of cooperation required for the provision of the agreed services. In particular, the customer shall provide all necessary information and documents free of charge and shall designate a contact person who is professionally qualified and has sufficient authorizations for the performance of the contract. Submitted information and documents serve as an essential basis for the implementation services of DataFortress. The provision of incorrect or incomplete information shall be at the Customer’s expense.
9.2 The Customer shall itself back up data and information, including those processed on IT systems for which DataFortress is responsible. In addition, DataFortress will create daily backups for VEs, which will be kept for seven days, weekly backups, which will be kept for four weeks and monthly backups, which will be kept for three months. Data on shared storage systems (e.g., NFS servers), will be backed up daily and the backups will be retained for three days, provided that the backup of the data does not exceed 20 hours.
9.3 If DataFortress receives materials, data and other information (“Customer Materials”) from the Customer in the course of the performance of the Agreement, the Customer shall ensure that a copy of the data remains with the Customer for backup purposes. The Customer shall also ensure that data stored on DataFortress’ systems are free of any malware.
9.4 Insofar as the Customer provides DataFortress with protected content (e.g. graphics, trademarks and other content protected by copyright or trademark law), the Customer shall grant DataFortress all rights necessary for the performance of the contractual agreement. This includes, in particular, the right to make the relevant content available to the public. In this context, the customer assures that he owns all necessary rights to customer materials provided in order to grant DataFortress the corresponding rights.
9.5 DataFortress shall be released from the obligation to provide the contractual services if and to the extent that the Customer fails to comply with its duties to cooperate. Any existing schedules shall be automatically adjusted accordingly. If the Customer is responsible for the failure to provide the cooperation service and if DataFortress suffers damage as a result, the Customer shall compensate DataFortress for such damage.
- exemption 10.1 As a technical service provider, DataFortress stores content and data for the Customer, which the Customer enters and stores and makes available for retrieval when using the contractual services. The Customer undertakes vis-à-vis DataFortress not to post any content and data that is punishable by law or otherwise illegal in absolute terms or in relation to individual third parties. The customer remains the responsible party with regard to personal data and must therefore always check whether the processing of such data via the use of the software is supported by the corresponding permissions.
10.2 The Customer is solely responsible for all content and processed data made available by it as well as any legal positions required for this. DataFortress does not take any notice of contents of the customer and does not check them in any respect.
10.3 In this context, Customer agrees to indemnify DataFortress against any liability and any costs, including possible and actual costs of legal proceedings, in the event that a claim is made against DataFortress by third parties, including employees of Customer personally, as a result of alleged acts or omissions of Customer. DataFortress shall notify the Customer of the claim and, to the extent legally possible, give the Customer the opportunity to defend the asserted claim. At the same time, the Customer shall immediately provide DataFortress with all information available to it regarding the facts that are the subject of the claim in full.
10.4 Any further claims for damages shall remain unaffected.
- changes in the subject matter of the contract (change request procedure) 11.1 Changes in the quantitative scope of the services owed in accordance with the Annex Hosting Concept/Offer/Service Certificate (e.g. with regard to the storage space used, number of CPU cores or amount of RAM as well as the number of systems of a type (e.g. app server, database slave server, etc.) may be made by the Customer himself or have them made by DataFortress at any time. Such change requests are to be sent directly to the Service Desk via Ticket System by e-mail to email@example.com. Change requests are accepted on weekdays, Monday through Friday between 9:00 a.m. and 5:00 p.m. and documented in the ticket system.
11.2 Changes to the content of the owed service (e.g. the use of additional offers) can also be ordered via the ticket system.
Such a change request shall contain at least the following information:
Description of the desired change; Meaning and purpose of the requested change; Special circumstances and background to be considered with regard to the requested change; Urgency of the requested change.
11.3 DataFortress shall then immediately check what effects the desired change will have on the contractual service structure, in particular with regard to the agreed remuneration. If DataFortress determines that the change request can be implemented without further ado, the change will be implemented and documented in the ticket system.
11.4 If DataFortress determines that services to be rendered cannot be performed or can only be performed with a delay due to the expected review effort for the change, DataFortress shall notify the customer of this and point out to the customer that the change request can only be further reviewed if the affected services are postponed accordingly. If the customer declares his agreement with this postponement, DataFortress will carry out the review of the change request. If, on the other hand, the customer withdraws its change request, the initiated change request procedure ends.
11.5 To the extent that the change request cannot be implemented immediately and without additional consultation with the customer, DataFortress shall, after reviewing the change request, present to the customer the effects of the change request on the agreements made. The explanation shall contain either a proposal for the implementation of the change request or information as to why the change request cannot be implemented. The parties shall immediately agree on the content of a proposal for the implementation of the change request and fix the result of a successful agreement in a supplementary agreement. If no agreement is reached or if the change request procedure ends for any other reason, the original service content and scope shall remain in effect. (Such supplements only exist in exceptional cases. The business is too dynamic for that in many cases).
11.6 The customer shall bear the expenses incurred as a result of the change request. This includes in particular the expenses for the examination of the change request, the preparation of a change proposal and any downtimes. The applicable hourly rate for this shall be based on the price list valid at the time of the conclusion of the contract.
11.7 DataFortress is entitled to change or deviate from the scope of its services in order to ensure the provision of its services under this agreement and, in particular, to release larger volumes, even without a previously explicitly issued order by the customer. DataFortress will notify the customer of such changes immediately after they are made. After notification, the customer may reject the changes or deviations or additionally provided services. If the customer does not object to the changes or deviations after corresponding notification by DataFortress within two weeks after receipt of the notification, DataFortress will invoice the services rendered according to the respective valid price list. If the Customer does not object in text form within the aforementioned period, the change, deviation or additionally rendered service shall be deemed approved.
11.8 If the catalog of services has to be changed due to an act of cooperation not undertaken by the Customer, in particular due to the correction of information already provided up to the time of acceptance or as a result of the subsequent submission of information, this shall be deemed to be a change in services in accordance with this Section 11.
12 Remuneration; payment and invoicing modalities 12.1 Invoicing shall be based on the volume used or the services booked. Booked resources such as servers as well as agreed flat rates shall be invoiced monthly in advance, services which are invoiced according to consumption, such as traffic, shall be invoiced subsequently. The prices are based on the price list valid at the time of the conclusion of the contract.
12.2 Unless otherwise indicated, prices quoted by DataFortress are subject to the applicable statutory value-added tax. The remuneration is based on the price list valid at the time of the conclusion of the contract. Additional services which are subject to a charge and which the customer makes use of after conclusion of the contract shall be remunerated in accordance with the price list valid at that time or in accordance with the agreement of the parties.
12.3 If a fixed price is agreed as a one-time payment, it shall be due for payment without a discount upon receipt of the invoice. If payment of the fixed price in installments is agreed, the agreed installment shall be due for payment upon receipt of the partial invoice without any further discount.
12.4 If the agreed service is remunerated on a time and material basis, the invoice shall be issued monthly in arrears for the previous month. The invoice shall be issued on the basis of written proof of performance, which shall be attached to the invoice. Services that are billed on a time basis, e.g. in the area of Managed Services, are documented by DataFortress with the smallest unit of 15 minutes. The performance records are considered accepted if the Client does not object to them within a maximum of 5 working days after receipt.
12.5 In the case of term contracts, DataFortress can adjust the prices as well as the rates for an agreed remuneration according to the general price development after the expiry of the initially agreed contract term. If the fee increase amounts to more than 5%, the customer may terminate the contractual relationship with a notice period of five working days. The notice of termination shall be given within 14 days after the announcement of the increase.
12.6 In the case of agreed partial services and for partial invoices, the provisions of this Section 12 shall apply accordingly.
12.7 Invoices shall be sent electronically as PDF files. A fee shall be charged for mailing. Invoices shall be due for payment without deduction immediately upon receipt. The conditions and consequences of default shall be governed by the statutory provisions. If a due payment of a customer is more than three months overdue or has been reminded for the third time, DataFortress reserves the right to discontinue its own services or to block access to the service. If a partial amount of an invoice is disputed, the undisputed part shall always be paid.
12.8 Both contracting parties are only entitled to set-off with legally established or undisputed claims that are due and such that arise from the same legal relationship and have arisen from a claim that would have entitled the creditor of the counterclaim to assert a right of retention or a right to refuse performance.
13 Liability 13.1 DataFortress is liable for damages of the Customer caused intentionally or by gross negligence, which are the consequence of the non-existence of a guaranteed quality of the object of performance, which are based on a culpable violation of essential contractual obligations (so-called cardinal obligations, see Section 13.2), which are the consequence of culpable injury to health, body or life or for which liability is provided for under the Product Liability Act, in accordance with the statutory provisions.
13.2 Cardinal obligations are those contractual obligations the fulfillment of which makes the proper execution of the contract possible in the first place and the observance of which the contractual partner may regularly rely on, and the violation of which on the other hand endangers the achievement of the purpose of the contract.
13.3 In the event of a breach of a cardinal obligation, liability - insofar as the damage is based solely on simple negligence and does not affect life, limb or health - is limited to such damage that is foreseeable and can typically be expected to occur within the scope of contracts such as those between DataFortress and the Customer.
13.4 Liability due to interruption, malfunction or other events causing damage, which are based on telecommunication services of DataFortress or third parties for which DataFortress is liable, is limited to the amount of recourse possible for DataFortress against the respective telecommunication service provider. DataFortress is not liable for the operability of the connection lines to the contractual server, in case of power failures and in case of failures of servers which are not within the sphere of influence of DataFortress.
13.5 Claims for loss of profit are excluded.
13.6 In all other respects, liability - for whatever legal reason - of DataFortress as well as of its vicarious agents and assistants is excluded.
13.7 DataFortress’ liability for loss of data is limited to the typical recovery effort that could not have been avoided even if the customer had made regular and risk-appropriate backup copies.
- subcontractors, third party products DataFortress may use subcontractors for the provision of the services owed. In doing so, DataFortress ensures that the service provision in the area of hosting is carried out from Germany.
15 Confidentiality 15.1 The Customer is obligated to keep confidential all information about DataFortress that has become known to him or becomes known to him in connection with this contract and that is marked as confidential or is classified as business and trade secrets on the basis of other circumstances (e.g. conception and implementation of the programming carried out by DataFortress and other technical and technological know-how of DataFortress, hereinafter referred to as “Confidential Information”), to keep it permanently secret, not to disclose it to third parties, to record it or to use it in any other way, unless DataFortress has expressly consented in writing to its disclosure or use or the information is required to be disclosed by law, court order or administrative decision.
15.2 Insofar as relevant, the Customer shall ensure by means of suitable contractual agreements with its employees and all other persons working for it that these persons also refrain from any disclosure, utilization, disclosure or recording of the Confidential Information.
15.3 The information shall not be Confidential Information within the meaning of this Section 15 if it was
was already known to the Customer beforehand without the information having been subject to a confidentiality obligation, is generally known or becomes known without a breach of the confidentiality obligations assumed, is disclosed to the Customer by a third party without breach of a confidentiality obligation. 15.4 If the Customer violates any of the obligations set forth in this clause, DataFortress may terminate the contract extraordinarily. DataFortress reserves the right to further and more extensive claims, in particular claims for damages.
15.5 The obligations under this clause 15 shall survive the end of the contract.
reference information DataFortress is entitled to refer to services to be rendered or rendered for the customer on its own website and in its own documents when stating references for advertising purposes and to also use the logo and the company name (abbreviated if necessary) of the customer for this purpose. Furthermore, DataFortress is allowed to publish press releases about the client’s order and the project.
data protection 17.1 Insofar as DataFortress collects, processes and uses personal data from the sphere of the Customer in the course of initiating, establishing and executing the contract, this shall be done in accordance with the applicable statutory provisions on data protection, and in particular only within the scope of the purpose of the contract.
17.2 The Customer shall not process any personal data on IT systems for which DataFortress is technically responsible. If the Customer commissions DataFortress with services in the context of which it cannot be excluded that DataFortress comes into contact with personal data for which the Customer is responsible, a commissioned data processing agreement shall be concluded.
18 Term, Termination 18.1 Unless otherwise agreed for individual services, the minimum term of the contract shall be 24 months after signing of the contract. The term shall be extended by a further twelve months in each case if the contract is not terminated in writing after expiry of the minimum contract term with six months’ notice to the end of the month.
18.2 Notwithstanding the foregoing, this Agreement may be terminated in writing by either party in the event of a sustained breach of material contractual obligations by the other party if, despite written warning by the other party, such party fails to comply with the Agreement even after a reasonable period of time and the terminating party cannot reasonably be expected to continue the respective contractual relationship until the ordinary termination as set forth above takes effect.
18.3 The right to extraordinary termination shall remain unaffected.
19 Termination and settlement 19.1 In the event of a complete or partial termination of this agreement, DataFortress is obligated to surrender to the Customer or to destroy at the Customer’s request all data, documents and materials in its possession which contain business, organizational or technical data or information from or about the Customer, unless statutory retention periods conflict with this, unless the data, documents, etc. to be surrendered or destroyed are the intellectual property of DataFortress or are still required by DataFortress for the further processing of the agreement.
19.2 At the Customer’s request, DataFortress shall provide all services required for the transfer of the contractual services to the Customer or a third party designated by the Customer (e.g. migration to another IT system, provision of appropriately qualified employees, performance of training) for a period of up to twelve (12) months after termination of the Agreement (hereinafter referred to as the “Transition Period”). DataFortress shall work closely with the Customer and the third party designated by the Customer to ensure that no disruptions in the provision of services occur during the Transition Period and that the Customer or the third party designated by the Customer is able to commence operation of the contractual services after the date of termination of the Agreement. In this respect, DataFortress is also obligated to prepare and provide appropriate documentation. The Customer shall cooperate in this regard.
19.3 DataFortress’s claim to remuneration for the monthly fee as well as all other costs shall remain in effect until the final shutdown of the systems. In individual cases, a reduction of the calendar monthly remuneration, the agreed availability levels and the warranty conditions may be agreed for this period.
19.4 Upon receipt of written notification that the Customer has been able to read and process all transferred data, the data will be deleted from the systems in DataFortress’ data center and the Customer will be notified of this deletion in writing.
- non-solicitation Customer agrees to refrain from employing or soliciting or attempting to employ or solicit any employee employed or otherwise engaged by DataFortress for the duration of this Agreement.
21 Miscellaneous 21.1 The place of performance of all obligations under the respective contract shall be the place of business of DataFortress if the Customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law.
21.2 The law of the Federal Republic of Germany shall apply exclusively to the contract. The application of German international private law and the EU regulations ROM I and ROM II is excluded.
21.3 The place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship shall be Augsburg if the Customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law. This shall also apply in the context of proceedings relating to bills of exchange and checks.
21.4 If any provision in these General Terms and Conditions, the Special Terms and Conditions or any other contractual document is or becomes invalid, the validity of all other provisions shall not be affected.