Terms of Service
table of contents
- scope
- Services of the Provider
- performance changes
- conclusion of contract
- right of withdrawal
- Customer Obligations
- Remuneration and Terms of Payment
- Contract Duration and Contract Termination
- Liability
- Change of Terms and Conditions
- Governing Law, Jurisdiction
- Alternative Dispute Resolution
1) Scope
1.1 These General Terms and Conditions (hereinafter "GTC") of Felix Netzel, trading under "NetCell-IT" (hereinafter "Provider"), apply to all contracts that a consumer or entrepreneur (hereinafter "Customer") with the Provider with regard to the provider completes the services presented on its website. The inclusion of the customer's own conditions is hereby contradicted, unless something else has been agreed.
1.2 A consumer within the meaning of these General Terms and Conditions is any natural person who concludes a legal transaction for purposes that are predominantly neither commercial nor self-employed.
1.3 Entrepreneur within the meaning of these terms and conditions is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity.
1.4 Entrepreneurs within the meaning of these terms and conditions are also authorities or other institutions under public law if they act exclusively under private law when concluding the contract.
2) Provider's services
2.1 The provider provides services to make content accessible via the Internet. For this purpose, he makes system resources available to the customer on a virtual server. The customer can store content up to a certain extent on this server. The exact scope results from the service description of the provider.
2.2 The content is kept available on the server under an Internet domain assigned to the customer for retrieval via the Internet. The services of the provider in the transmission of data are limited solely to data communication between the transfer point operated by the provider of their own data communication network to the Internet and the server provided for the customer. It is not possible for the provider to influence data traffic outside of its own communication network. A successful forwarding of information from or to the computer querying the content is therefore not owed in this respect.
2.3 The provider's online service is offered subject to availability. 100 percent availability is not technically feasible and the provider cannot therefore guarantee the customer. However, the provider endeavors to keep the service available as constantly as possible. In particular, maintenance, security or capacity issues as well as events that are beyond the Provider's control (disruptions to public communication networks, power failures, etc.) can lead to disruptions or the temporary shutdown of the service.
2.4 The provider provides the aforementioned services with a total availability of 99 %.
The availability is calculated on the basis of the time allotted to the respective calendar month in the contract period minus the maintenance times. The provider will, as far as possible, carry out the maintenance work during off-peak times.
2.5 Unless otherwise agreed, the provider does not create any backup copies of the customer content. The customer is responsible for creating and maintaining sufficient backup copies of his content stored by the provider and not storing it exclusively on the provider's servers.
2.6 The provider is entitled to adapt the hardware and software used to provide the services to the current state of the art. If, as a result of such an adjustment, there are additional requirements for the content stored by the customer on the server in order to guarantee the provision of the provider's services, the provider will inform the customer of these additional requirements in good time. In this case, the customer must inform the provider no later than four weeks before the changeover time whether he will adapt his content to the additional requirements in good time - i.e. no later than three working days before the changeover time. If the customer refuses to adapt his content or if he does not declare this to the provider within the aforementioned period, the provider can terminate the contractual relationship with effect from the time of the changeover.
2.7 The provider also takes on the procurement of the Internet domain(s) under which the customer's content is to be made available. For this purpose, the customer has to name the internet domain(s) he/she wants. The provider assumes no liability for the availability of the desired domain(s) or the non-violation of third-party rights (e.g. name, trademark or title rights) through the registration of the desired domain(s) on the customer. If the desired domain(s) is (are) no longer available, the provider will inform the customer immediately and submit up to three alternative suggestions that come as close as possible to the domain originally desired. The customer must then decide on one of the alternative proposals within a reasonable period of time set by the provider. If the customer allows the reasonable period set by the provider to elapse without result, the provider is entitled to select a domain for the customer. The provider is not responsible for obtaining rights to domains that have already been registered for third parties by the responsible registry. The integration of an external domain managed by another provider is not permitted. The provider has to register the domain in the name and for the account of the customer. In particular, when selecting the domain name and the registration office and when negotiating the conditions, the provider must independently protect the customer's financial interests and use his expertise in the customer's service. He must provide the customer with information and account for the status and progress of his undertakings in this matter at any time upon request. All rights and naming rights acquired on the domain belong to the customer.
3) Performance Changes
3.1 The provider reserves the right to change the services offered or to offer different services, unless this is not reasonable for the customer.
3.2 The provider also reserves the right to change the services offered or to offer different services,
- insofar as he is obliged to do so due to a change in the legal situation;
- insofar as he thereby complies with a court judgment or an official decision directed against him;
- to the extent that the respective change is necessary to close existing security gaps;
- if the change is only beneficial to the customer; or
- if the change is of a purely technical or procedural nature without any significant impact on the customer.
3.3 Changes with only an insignificant influence on the services of the provider do not represent changes in service within the meaning of this clause. This applies in particular to changes of a purely graphic nature and the mere change in the arrangement of functions.
4) Conclusion of contract
4.1 The services described on the provider's website do not represent binding offers on the part of the provider, but serve to enable the customer to submit a binding offer.
4.2 The customer can submit the offer via the online order form provided on the provider's website. After entering their personal data, the customer submits a legally binding contract offer in relation to the selected services by clicking on the button that concludes the ordering process.
4.3 The provider can accept the customer's offer within five days,
- by sending the customer a written order confirmation or an order confirmation in text form (fax or e-mail), whereby receipt of the order confirmation by the customer is decisive, or
- by asking the customer to pay after placing his order.
If there are several of the above alternatives, the contract is concluded at the point in time at which one of the above alternatives occurs first. The period for accepting the offer begins on the day after the customer has sent the offer and ends at the end of the fifth day following the sending of the offer. If the provider does not accept the customer's offer within the aforementioned period, this is considered a rejection of the offer with the result that the customer is no longer bound by his declaration of intent.
4.4 If you select a payment method offered by PayPal, the payment will be processed via the payment service provider PayPal (Europe) S.à rl et Cie, SCA, 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal"), subject to the PayPal Terms of Use, available at https://www.paypal.com
4.5 When submitting an offer via the provider's online order form, the text of the contract is saved by the provider after the conclusion of the contract and sent to the customer in text form (e.g. email, fax or letter) after the order has been sent. The provider does not make the contract text accessible beyond this. If the customer has set up a user account for the provider's website before sending his order, the order data will be archived on the provider's website and can be accessed free of charge by the customer via his password-protected user account by providing the corresponding login data.
4.6 Before submitting a binding order via the provider's online order form, the customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better recognition of input errors can be the enlargement function of the browser, with the help of which the display on the screen is enlarged. The customer can correct his entries as part of the electronic ordering process using the usual keyboard and mouse functions until he clicks the button that completes the ordering process.
4.7 Only the German language is available for the conclusion of the contract.
4.8 The order processing and contact usually takes place via e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct so that the e-mails sent by the provider can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the provider or by third parties commissioned to process the order can be delivered.
5) Right of Withdrawal
In principle, consumers are entitled to a right of withdrawal. Further information on the right of withdrawal can be found in the provider's cancellation policy.
6) Customer Obligations
6.1 The content stored by the customer in the storage space intended for him may be protected by copyright and data protection law. The customer grants the provider the right to make the content stored by him on the server accessible via the Internet for queries, in particular to reproduce and transmit it for this purpose and to be able to reproduce it for data backup purposes. The customer checks on his own responsibility whether the use of personal data by him satisfies data protection requirements.
6.2 The customer undertakes not to store any content on the storage space provided that violates applicable law or violates the rights of third parties. The customer shall also ensure that programs, scripts or similar installed by him do not endanger the operation of the provider's server or communication network or the security and integrity of other data stored on the provider's servers.
6.3 The customer exempts the provider from all claims that third parties assert against the provider for violation of their rights due to content stored on the server by the customer. The customer assumes the costs of the necessary legal defense, including all court and attorney fees, in an appropriate amount. This does not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obliged to provide the provider with all information that is necessary for the examination of the claims and a defense without delay, truthfully and completely.
6.4 In the event of an imminent or actual violation of the above obligations, as well as the assertion of claims by third parties that are not obviously unfounded against the provider due to the content stored on the server, the provider is entitled, taking into account the legitimate interests of the customer, to connect this content to the Internet to be temporarily suspended in whole or in part with immediate effect. The provider will inform the customer about this measure immediately.
6.5 If programs, scripts, etc. installed by the customer endanger or impair the operation of the provider's server or communication network or the security and integrity of other data stored on the provider's servers, the provider can deactivate or uninstall these programs, scripts, etc. If the elimination of the threat or impairment requires this, the provider is also entitled to interrupt the connection of the content stored on the server to the Internet. The provider will inform the customer about this measure immediately.
6.6 For access to the storage space intended for the customer, the customer receives a user ID and a changeable password. The customer is obliged to change the password at regular intervals. The customer may only pass on the password to persons who have been authorized by him to access the storage space.
7) Compensation and Terms of Payment
7.1 Unless otherwise stated in the provider's service description, the prices quoted are total prices that include statutory sales tax.
7.2 The payment options and the payment modalities are communicated to the customer on the website of the provider.
7.3 The remuneration will be debited from the customer's bank account at the agreed billing intervals by direct debit. The customer gives the provider a direct debit mandate (SEPA), which can be revoked at any time. If the direct debit is not redeemed due to insufficient funds in the account or because incorrect bank details have been provided, or if the customer objects to the debit although he is not entitled to do so, the customer must bear the fees incurred by the respective bank if he is responsible for this .
7.4 If you select a payment method offered via the "PayPal" payment service, the payment is processed via PayPal, whereby PayPal can also use the services of third-party payment service providers for this purpose. If the seller also offers payment methods via PayPal in which he pays the customer in advance (e.g. purchase on account or payment by installments), he assigns his payment claim to PayPal or to the payment service provider commissioned by PayPal and specifically named to the customer. Before accepting the seller's declaration of assignment, PayPal or the payment service provider commissioned by PayPal carries out a credit check using the transmitted customer data. The seller reserves the right to refuse the customer the selected payment method in the event of a negative test result. If the selected payment method is approved, the customer must pay the invoice amount within the agreed payment period or in the agreed payment intervals. In this case, he can only pay to PayPal or the payment service provider commissioned by PayPal with debt-discharging effect. However, even if the claim is assigned, the seller remains responsible for general customer inquiries, e.g. B. to the goods, delivery time, shipment, returns, complaints, cancellation declarations and shipments or credits.
7.5 If prepayment by bank transfer has been agreed, payment is due immediately after conclusion of the contract, unless the parties have agreed on a later due date.
7.6 – Credit card payment via Stripe
If you select the credit card payment method via Stripe, the invoice amount is due immediately upon conclusion of the contract. Payment is processed by the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter: "Stripe"). Stripe reserves the right to carry out a credit check and to reject this payment method if the credit check is negative.
- If the SEPA direct debit payment method is selected, the invoice amount is due after a SEPA direct debit mandate has been issued, but not before the deadline for the advance payment information has expired. The direct debit is collected when the ordered goods leave the seller's warehouse, but not before the deadline for advance information has expired. Pre-notification (“pre-notification”) is any message (e.g. invoice, policy, contract) from the seller to the customer that announces a debit using SEPA direct debit. If the direct debit is not redeemed due to insufficient funds in the account or because incorrect bank details have been provided, or if the customer objects to the debit although he is not entitled to do so, the customer must bear the fees incurred by the respective bank if he is responsible for this .
- If the SEPA direct debit payment method is selected, the invoice amount is due after a SEPA direct debit mandate has been issued, but not before the deadline for the advance payment information has expired. The direct debit is collected when the ordered goods leave the seller's warehouse, but not before the deadline for advance information has expired. Pre-notification (“pre-notification”) is any message (e.g. invoice, policy, contract) from the seller to the customer that announces a debit using SEPA direct debit. If the direct debit is not redeemed due to insufficient funds in the account or because incorrect bank details have been provided, or if the customer objects to the debit although he is not entitled to do so, the customer must bear the fees incurred by the respective bank if he is responsible for this . The seller reserves the right to carry out a credit check when selecting the SEPA direct debit payment method and to reject this payment method if the credit check is negative.
8) Contract Duration and Contract Termination
8.1 The contract is concluded for an indefinite period, but at least for a period of one year (minimum term). During the minimum term, the contract can be terminated with one month's notice to the end of the minimum term. If the contract is not terminated in due time, it will be extended indefinitely and can then be terminated at any time with one month's notice.
8.2 The right to extraordinary termination for good cause remains unaffected. An important reason exists if the terminating party, taking into account all the circumstances of the individual case and weighing the interests of both parties, cannot be expected to continue the contractual relationship until the agreed termination or until the expiry of a period of notice.
8.3 Cancellations can be made in writing, in text form (e.g. by e-mail) or in electronic form via the cancellation device (cancellation button) provided by the provider on its website.
8.4 After termination of the contractual relationship, the provider makes available to the customer the content stored on the storage space intended for the customer on a data carrier. Any rights of retention of the provider remain unaffected.
9) Liability
9.1 The provider is liable for all contractual, quasi-contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:
9.1.1 The provider is fully liable for any legal reason
- in the event of intent or gross negligence,
- in the event of intentional or negligent injury to life, limb or health,
- on the basis of a guarantee promise, unless otherwise agreed in this regard,
- due to mandatory liability such as under the Product Liability Act.
9.1.2 If the provider negligently violates an essential contractual obligation, liability is limited to the foreseeable damage that is typical for the contract, unless liability is unlimited in accordance with the above paragraph. Essential contractual obligations are obligations which the contract imposes on the provider according to its content in order to achieve the purpose of the contract, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer can regularly rely.
9.1.3 Apart from that, liability on the part of the provider is excluded.
9.1.4 The above liability regulations also apply with regard to the liability of the provider for his vicarious agents and legal representatives.
10) Amendment of the GTC
10.1 If the customer acts as an entrepreneur, the provider reserves the right to change these GTC at any time without giving reasons, unless this is not reasonable for the customer. The provider will inform the customer about changes to the terms and conditions in text form in good time. If the customer does not object to the validity of the new GTC within a period of four weeks after notification, the changed GTC are deemed to have been accepted by the customer. In the notification, the provider will inform the customer of his right to object and the importance of the objection period. If the customer objects to the changes within the aforementioned period, the contractual relationship continues to exist under the original conditions.
10.2 The provider also reserves the right to change these terms and conditions,
- insofar as he is obliged to do so due to a change in the legal situation;
- insofar as he thereby complies with a court judgment or an official decision directed against him;
- if he introduces additional, completely new services, services or service elements that require a description of services in the General Terms and Conditions, unless the previous usage relationship is adversely changed as a result;
- if the change is only beneficial to the customer; or
- if the change is purely technical or procedural, unless it has a significant impact on the customer.
10.3 The customer's right of termination remains unaffected.
11) Applicable Law, Place of Jurisdiction
The law of the Federal Republic of Germany applies to all legal relationships between the parties. For consumers, this choice of law only applies insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.
12) Alternative Dispute Resolution
12.1 The EU Commission provides a platform for online dispute resolution on the Internet under the following link: https://ec.europa.eu
This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved.
12.2 The provider is neither obliged nor willing to participate in a dispute settlement procedure before a consumer arbitration board.