The following General Terms and Conditions (GTC) are an integral part of all contracts with FluidWEB GmbH, hereinafter also referred to as Provider.
1 Order placement
By placing an order with the Provider, regardless of the form in which the order is placed, the Customer acknowledges the following General Terms and Conditions for the duration of the entire business relationship. In addition, the Provider’s general terms of delivery and general terms of payment are also recognized for the entire duration of the business relationship. If the customer should wish deviating, individual contract conditions, he has to communicate this in writing to the Provider. However, the individually negotiated contractual conditions only become effective when they have been accepted in writing by the Provider vis-à-vis the Customer.
2.1 Service description
Acceptance of the Customer’s order by the Provider is effected by the allocation of the access data for the ordered product. With the acceptance, a contract between the Customer and the Provider for the use of the Provider’s services is concluded. Domain names are registered by the Provider with the respective NIC and billed directly to the Customer. The IP addresses required for the operation of the services provided remain the property of the Provider and may be changed by the Provider at any time. Data for the registration of domain names are transmitted to the respective NIC in an automated procedure. The customer expressly agrees to the transmission of this data.
The customer can only assume the actual availability and allocation of the domain name once this has been confirmed by the respective NIC. Any liability and warranty for the allocation of the ordered domain names is excluded on the part of the Provider, unless it or one of its vicarious agents is guilty of intent or gross negligence. Furthermore, the guidelines of the respective registry (e.g. DENIC eG) apply to domain registration.
For the creation of statistics, so-called log files are stored on the customer’s storage space. The logfiles consume parts of the provided storage space and can therefore be deleted by the Provider in reasonable intervals to be determined by the Provider. The customer can retrieve the log files from the server if necessary. An evaluation of the log files is carried out by the Provider only for the purpose of providing the Customer with centrally processed and condensed statistics in accordance with Customer information. Any further storage and use by the Provider is excluded. The customer is not entitled to delete or modify these log files. IP addresses in log files can be anonymized by the Provider.
If the Provider provides services free of charge, which are not subject of the respective booked tariff, these can be discontinued at any time without giving reasons.
The Provider has the right to terminate the contract with the Customer for cause if the Customer culpably violates the obligations incumbent upon him in these GTC.
The Provider states the guaranteed availability of the services as an annual average percentage. It is based on the tariff shown in the respective valid and current list of prices and services. Excluded from this are, in particular, times when the web server cannot be reached via the Internet due to technical or other problems that are beyond the Provider’s control (e.g. force majeure, fault of a third party, etc.). The Provider shall only be responsible for the accessibility to the extent that the non-accessibility is due to the part of the network operated by it or the web server itself.
2.2 Usage restrictions in web hosting tariffs (does not apply to server, reseller tariffs)
Programs such as voice chats, top lists, game servers, banner programs (banner exchange, ad servers, etc.), freespace offers, subdomain services, counter systems as well as large download databases may only be used by the Customer with the Provider’s prior written consent. The Customer is also prohibited from operating a chat forum, unless the Customer’s tariff includes a chat system provided by the Provider. In such cases, the Provider is entitled to charge a separate fee for the use of such programs. In this case, the separate price lists apply. The Provider reserves the right to block content that impairs the normal operating behavior or the security of the server (such as computer viruses, Trojans, spyware, or software that is or becomes known to have security vulnerabilities), or to prevent its operation in individual cases.
2.3 Special rules for servers, vServers, root servers, Windows servers and dedicated servers
For certain servers, the customer alone has administrator rights. The provider cannot manage the server. The customer is therefore solely responsible for the security of his server. It is incumbent upon him to install security software, to regularly inform himself about security vulnerabilities that become known and to close known security vulnerabilities. The installation of maintenance programs or other programs provided or recommended by the Provider does not release the Customer from this obligation.
Each customer is obliged to set up and manage his server in such a way that the security, integrity and availability of the networks, other servers, software and data of third parties are not endangered. If spam mails are sent via the customer’s server, the provider will block the server. If a customer endangers security, integrity or availability of networks, servers, software or data via his server or if the Provider has such a suspicion based on objective evidence, the Provider may temporarily block the server. If a server becomes the target of (D)DoS attacks and a repetition is to be expected, the Provider may terminate the contractual relationship without notice after a warning.
The customer is responsible for a data backup. A claim of the customer for data backup by the provider is excluded.
Internet Relay Chat (IRC) services, anonymization services and P2P exchange networks may only be used by the Customer with the prior written consent of the Provider.
2.4 Special rules in reseller tariffs
Programs such as voice chats, top lists, game servers, banner programs (banner exchange, ad servers, etc.), freespace offers, subdomain services, counter systems as well as large download databases may only be used by the customer with the prior written consent of the Provider. The Customer is also prohibited from operating a chat forum, unless the Customer’s tariff includes a chat system provided by the Provider. In such cases, the Provider is entitled to charge a separate fee for the use of such programs. In this case, the separate price lists apply. The Provider reserves the right to block content that impairs the normal operating behavior or the security of the server (such as computer viruses, Trojans, or software that is or becomes known to have security vulnerabilities) or to prevent its operation in individual cases. The customer himself is responsible for a data backup. A claim of the customer for data backup by the provider is excluded.
3 Prices, offers and terms of payment
The offers of the Provider are subject to change and non-binding. The actual prices to be paid by the customer and the services to be provided by the Provider are based on the current price and service lists.
If an increase in costs should occur until the execution of the order, the customer will be informed about this in due time. The customer is thereby entitled, as far as a price increase occurs, to withdraw from his order to the Provider.
Invoices of the Provider are to be paid by the Customer at the latest 10 days after dispatch. If the customer is in arrears with a payment, the Provider is entitled to make use of his legal right of retention in § 273 BGB (German Civil Code) and to block the services both for the customer and for access from the Internet until the outstanding amount has been received.
If the customer does not meet his payment obligation within a further grace period of 10 days despite a reminder, the Provider is entitled to terminate the contract without notice.
If the services are blocked by the Customer due to the delay in payment and the Customer pays the outstanding amount within the grace period, the Customer shall in any case bear the costs of unblocking by the Provider in accordance with the current price list.
In addition, in the event of default in payment, the Provider is entitled to assert against the Customer the claims for damages for default to which the Provider is entitled by law. The amount in arrears will be subject to interest at the statutory default interest rate (§ 288 BGB) for the period of default.
The Customer shall reimburse the Provider for any additional costs incurred by the Provider as a result of the Customer’s culpable conduct in connection with payment transactions, e.g. return debit notes in the case of credit card payments or electronic direct debiting.
If payment of an invoice by direct debit has been agreed with the customer and if invoices, whether different or the same, cannot be successfully collected twice in succession, the customer shall be excluded from payment by direct debit. Thereafter, his payments can only be made by bank transfer. In addition, the Customer shall reimburse all costs incurred by the Provider as a result of the returned direct debits. Furthermore, in this case, the Provider reserves the right to demand all payments due up to the date of renewal of the Customer’s contract(s) immediately and in one sum. The Provider reserves the right to withhold its services in full until all outstanding claims of the Customer have been settled.
4.1 Contract term/cancellation periods
Unless otherwise stated in the specific offer, the contract shall be automatically extended by the respective minimum contract term or first contract term, as long as it is not terminated by one party with three months’ notice to the end of the respective term. If the first term is shorter than three months, the notice period shall be one month. If the first term is one month, the notice period shall be two weeks.
If the first contract term is longer than one year, the renewal periods are one year each.
Server customers (vServers, root servers, Windows servers and dedicated servers) and resellers have different and varying contract terms. The following shall apply to them: Unless otherwise stated in the specific offer, the contract shall be automatically extended by the respective minimum contract term or first contract term, up to a maximum of one year, as long as it is not terminated by one party with one month’s notice to the end of the respective term. If the first term is one month, the notice period is two weeks.
Contracts for the registration of a domain can be terminated with a notice period of one month to the end of the contract term. If the contract is not terminated, it is extended by the first contract period, provided that this is not longer than one year. If the first contract period is longer than one year, the contract shall be extended by one year.
Unless otherwise stated in the offer, the Customer shall pay the respective amount for the use of the Provider’s services in advance. The same shall apply insofar as the usage contract is extended.
4.2 Form of termination
The contract must be terminated in writing (§§ 126, 127 BGB).
In addition, the customer should, for better processing of his request, indicate his customer number in his letter of termination and state what exactly is to be terminated. If he is canceling a domain, he should state in the cancellation letter whether the domain is to be transferred to another provider, whether it is to be deleted immediately, or whether it is to expire at the end of the contract. A form for the cancellation, which contains all important information for quick processing, is available to the customer free of charge in the FAQ section of the website.
5 Special agreement for traffic-intensive use
Within the scope of the offers, only the traffic specified in the respective tariffs is permitted. Downloads are expressly permitted, but may not impair the rights of third parties or violate any laws. The customer expressly indemnifies the provider against claims resulting from violations of the law or the impairment of third party rights.
If the Customer maintains traffic-intensive offers without a corresponding special agreement with the Provider and exceeds the amount of the contractually agreed data volume, the Provider is entitled to demand an amount of 0.50 Euro (including the respective statutory value-added tax) for the excess per gigabyte or part thereof.
Furthermore, in the event that the customer is more than 10 days in arrears with the payment of the additional traffic caused by him, the Provider is entitled to block the services both for the customer and for accesses from the Internet until the outstanding amount has been settled. If the Customer does not pay the overdue amount despite a reminder and another grace period of 10 days, the Provider is entitled to terminate the contract with the Customer.
6 Data protection/data security
The backup of the data on the server is carried out in web hosting tariffs (not in server and reseller tariffs) by the provider with the backup manager included in the tariff to the respective extent of the booked web hosting tariff. The data backups of the provider are made only for the purpose of system recovery of the web server and failure protection after system crashes, hack attacks and hardware defects. Claims of the customer to these data backups do not exist. The customer is obliged to take care of a backup of his data himself.
The customer receives access data (user name and password) from the provider, which he has to treat confidentially and protect against unauthorized use by third parties. The Provider is not liable for damages resulting from unauthorized use or misuse of the access data for which the Customer is responsible.
The customer is aware that due to the structures of the Internet there is a risk that transmitted data can be intercepted. The customer expressly accepts this risk. The Provider is not liable for damages resulting from the interception of data. Furthermore, the Provider is not liable for the violation of confidentiality of e-mail messages or otherwise transmitted information. The above exclusion of liability does not apply if the Provider has acted intentionally or with gross negligence. As far as the damage consists of injury to life, body or health, the Provider is also liable for acts of negligence on his part.
7 Published content, mass mailings, mailing actions via electronic mail
The customer releases the provider from any liability for the content of transmitted web pages on the storage space and assures that he does not distribute any content via the storage space and the connected services that violates criminal law or the law for the protection of minors. If the customer nevertheless offers such content, the provider is entitled to terminate the contractual relationship immediately without notice and without setting a grace period and to block the corresponding services immediately and without notice.
Content that is subject to an age restriction of FSK 16 or FSK 18 is generally permitted, unless otherwise stated in the offer. However, the provider of such content must protect it from access by minors and take the legally required precautions, in particular the installation of legally required age verification systems.
The customer undertakes not to violate any trademark, patent or other rights of third parties with his offer. If the Provider nevertheless discovers such infringements, e.g. by notifying the owners of the aforementioned rights, the Provider is entitled to terminate the contractual relationship with the Customer extraordinarily and without notice. Furthermore, the Provider is entitled to block access to the Customer’s content from the Internet without notice if such infringements are detected.
The Customer is prohibited from initiating advertising, circular or mass mailings (mailing campaigns) via electronic mail using e-mail addresses of his domain without having been requested to do so by the e-mail recipients or having their consent to the sending. If the Provider detects a violation of this, e.g. through complaints from recipients of such e-mails, it is entitled, after unsuccessful warning with request to submit a cease-and-desist declaration with a penalty clause, to terminate the contractual relationship with the Customer extraordinarily and without notice. In addition, the Provider is entitled to block the web space, the used services and domains of the Customer immediately and without notice. The Provider is also entitled to the right of extraordinary termination and blocking of the provided services, as far as the Customer has allowed third parties to use the corresponding services and they cause the violations.
The Provider reserves the right to block content (such as viruses, Trojans, spyware or other malicious programs or programs in which security vulnerabilities are or become known) that impair the regular operating behavior or the security of the server, or to prevent their operation in individual cases.
The Provider is entitled to control the contents of the Customer’s account (storage space/web space) in case of justified suspicion regarding copyright infringements (e.g. through information from third parties). The Provider is also entitled to save the contents for evidence purposes.
The Provider may block and reject e-mails if they contain harmful code or software (e.g. spyware, worms, virus infections, hijackers, rootkits or Trojans or similar), if the sender information is incorrect or obfuscated, or if it is an unsolicited or covert or obfuscated commercial communication.
8 Trademark protection of the domain name
The customer assures the provider that by registering or connecting his domain name and publishing his data on the Internet no rights of third parties are violated and no illegal purposes are pursued. The customer is responsible for the choice of his domain name. He hereby indemnifies the Provider against all claims for damages by third parties arising in connection with the registration or connection of the domain name chosen by the Customer.
The Provider reserves the right, as far as third parties assert rights to the domain name chosen by the Customer, to block the domain name concerned until the dispute has been clarified in court. The customer has to prove the clarification of the dispute.
9 Liability and compensation
The Provider does not guarantee that the virtual server, server, reseller or web hosting account is suitable or permanently available for a particular service or software. The service of the Provider is the provision of the web hosting services or servers. The Provider assumes no liability for malfunctions within the Internet. Furthermore, the Provider assumes no liability for damages or consequential damages caused directly or indirectly by the reseller, web hosting account, server or vServer. This does not apply if the damage was caused by intentional actions on the part of the Provider.
Liability and damages are limited in amount to the value of the order for the period in which the Provider does not provide its service. This does not apply in the case of injury to health or life or if the damage was caused by intentional or grossly negligent acts on the part of the Provider or his vicarious agent.
The customer is aware that his web hosting accounts on the virtual host can only be accessed with browsers that adhere to the current HTTP specifications. This includes in particular all current versions of Microsoft Internet Explorer, Mozilla Firefox, Safari, Netscape, Google Chrome or Opera.
10 Place of performance, place of jurisdiction, applicable law
German law is applicable to contracts between the Provider and the Customer.
As far as the Customer is an entrepreneur, it is agreed between the Provider and the Customer that the place of jurisdiction for all legal disputes of any kind arising from the contractual relationship as well as about its origin or about its effectiveness is Bocholt.
The Provider is entitled to transfer the contract including all rights and obligations to a third party. He will inform the customer about this via his customer account. In the event of a transfer, the Customer shall be entitled to terminate the contractual relationship extraordinarily within one month of receipt of this information via the Customer’s account, subject to the contractually agreed notice period.
11 Severability clause
If one of the aforementioned provisions should be wholly or partially invalid or legally ineffective, this shall not affect the validity of the other provisions of the General Terms and Conditions as well as the contract. In such a case, Provider and Customer undertake to agree on such a provision that is legally effective and comes as close as possible to the purpose of the contract. If Provider and Customer do not find such a provision, the legally ineffective or void provision shall be replaced by the law.
12 Right of withdrawal
If two entrepreneurs conclude a transaction, then the consumer protection enshrined in the law does not apply, the right of withdrawal can not be exercised.