table of contents
- scope
- Services of the Provider
- Performance changes
- conclusion of contract
- right of withdrawal
- Customer Obligations
- Remuneration and payment terms
- Contract Duration and Contract Termination
- Liability
- Changes to the 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") concludes with the Provider with regard to the services presented by the Provider on its website. The inclusion of the Customer's own terms and conditions is hereby contradicted, unless otherwise 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 can predominantly neither be attributed to their commercial nor their independent professional activity.
1.3 An entrepreneur within the meaning of these General 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 his or her commercial or independent professional activity.
1.4 Entrepreneurs within the meaning of these General Terms and Conditions also include 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. To do this, it provides the customer with system resources on a virtual server. The customer can store content on this server up to a certain extent. The exact scope is determined from the provider's service description.
2.2 The content is kept on the server under an Internet domain assigned to the customer for retrieval via the Internet. The provider's services for transmitting data are limited solely to data communication between the transfer point of the provider's own data communication network to the Internet and the server provided for the customer. The provider is not able to influence data traffic outside of its own communication network. Successful forwarding of information from or to the computer requesting 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 technically impossible and therefore cannot be guaranteed to the customer by the provider. However, the provider endeavors to keep the service available as consistently as possible. In particular, maintenance, security or capacity issues as well as events that are beyond the control of the provider (disruptions to public communication networks, power outages, 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 1TP3D.
Availability is calculated on the basis of the time allocated to the respective calendar month during the contract period, minus the maintenance times. The provider will carry out maintenance work during low-usage times as far as possible.
2.5 Unless otherwise agreed, the provider does not create backup copies of the customer content. The customer is responsible for creating and maintaining sufficient backup copies of the content stored with 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 such an adaptation results in additional requirements for the content stored by the customer on the server in order to ensure 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 date whether he will adapt his content to the additional requirements in time for the changeover - that is, no later than three working days before the changeover date. If the customer refuses to adapt his content or does not inform the provider of this within the aforementioned period, the provider can terminate the contractual relationship with effect from the changeover date.
2.7 The provider also undertakes to procure the Internet domain(s) under which the customer's content is to be made available. To do this, the customer must name the Internet domain(s) he or she wishes to use. The provider does not guarantee the availability of the desired domain(s) or that third-party rights (e.g. name, trademark or title rights) will not be infringed by registering the desired domain(s) for the customer. If the desired domain(s) are no longer available, the provider will inform the customer immediately and make up to three alternative suggestions that are as close as possible to the domain originally desired. The customer must then choose one of the alternative suggestions within a reasonable period of time set by the provider. If the customer allows the reasonable period of time set by the provider to pass without success, the provider is entitled to select a domain for the customer. The provider is not responsible for obtaining rights to domains already registered for third parties by the responsible awarding authority. The integration of an external domain that is managed by another provider is not permitted. The provider must register the domain in the name and on behalf of the customer. In particular, when selecting the domain name and the registration office and when negotiating the terms, the provider must independently protect the financial interests of the customer and use its expertise to serve the customer. It must provide information and account to the customer at any time on request regarding the status and progress of its activities in this matter. All rights and naming rights acquired in 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 unreasonable for the customer.
3.2 The provider also reserves the right to change the services offered or to offer different services,
- to the extent that 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 administrative 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 significant impact on the customer.
3.3 Changes that have only an insignificant impact on the provider's services do not constitute changes to the 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 using 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 the button that completes 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 the receipt of the order confirmation by the customer is decisive, or
- by asking the customer to pay after placing his order.
If several of the aforementioned alternatives exist, the contract is concluded at the time at which one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the customer and ends on the expiry 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 deemed to be a rejection of the offer with the consequence that the customer is no longer bound by his declaration of intent.
4.4 If you select a payment method offered by PayPal, payment processing will be carried out 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, which can be viewed at https://www.paypal.com
4.5 When submitting an offer via the provider's online order form, the contract text is saved by the provider after the contract has been concluded 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 their order, the order data is archived on the provider's website and can be accessed free of charge by the customer via their password-protected user account by entering the relevant 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 of better identifying input errors can be the browser's zoom function, which enlarges the display on the screen. 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 To enter the contract you can use German as your prefered language.
4.8 Order processing and contact are usually carried out via email and automated order processing. The customer must ensure that the email address provided for order processing is correct so that emails sent by the provider can be received at this address. In particular, when using SPAM filters, the customer must ensure that all emails sent by the provider or by third parties commissioned by the provider to process the order can be delivered.
5) Right of Withdrawal
Consumers generally have 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 on the storage space allocated to him may be protected by copyright and data protection law. The customer grants the provider the right to make the content stored on the server accessible when requested via the Internet, in particular to copy and transmit it for this purpose and to be able to copy it for the purpose of data backup. The customer is responsible for checking whether the use of personal data by him complies with data protection requirements.
6.2 The customer undertakes not to store any content on the storage space provided that violates applicable law or infringes the rights of third parties. The customer also ensures that programs, scripts, etc. installed by him do not endanger the operation of the server or the provider's communications network or the security and integrity of other data stored on the provider's servers.
6.3 The customer indemnifies the provider against all claims made by third parties against the provider for violation of their rights due to content stored by the customer on the server. The customer assumes the costs of the necessary legal defense, including all court and attorney fees in a reasonable amount. This does not apply if the customer is not responsible for the violation of rights. In the event of a claim by third parties, the customer is obliged to provide the provider with all information that is necessary for the examination of the claims and for a defense, immediately, truthfully and completely.
6.4 In the event of an imminent or actual breach of the above obligations, or in the event of third parties asserting claims against the provider that are not obviously unfounded due to the content stored on the server, the provider is entitled, taking into account the legitimate interests of the customer, to temporarily suspend the connection of this content to the Internet in whole or in part with immediate effect. The provider will inform the customer of this measure immediately.
6.5 If programs, scripts, etc. installed by the customer endanger or impair the operation of the provider's server or communications 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 this is necessary to eliminate the risk or impairment, 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 of this measure immediately.
6.6 To access the storage space allocated to 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) Remuneration and payment terms
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 payment terms are communicated to the customer on the provider’s website.
7.3 The fee 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) that can be revoked at any time. If the direct debit is not honored due to insufficient funds in the account or due to incorrect bank details being provided, or if the customer objects to the debit even though he is not entitled to do so, the customer must bear the fees incurred by the respective credit institution for the chargeback if he is responsible for this.
7.4 If you select a payment method offered via the “PayPal” payment service, payment is processed via PayPal, although PayPal can also use the services of third-party payment service providers for this purpose. If the seller also offers payment methods via PayPal for which he makes advance payments to the customer (e.g. purchase on account or payment in 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 customer data transmitted. The seller reserves the right to refuse the customer the selected payment method if the test result is negative. If the selected payment method is approved, the customer must pay the invoice amount within the agreed payment period or at the agreed payment intervals. In this case, he can only pay PayPal or the payment service provider commissioned by PayPal with a debt-discharging effect. However, even in the event of an assignment of claims, the seller remains responsible for general customer enquiries, e.g. B. regarding the goods, delivery time, shipping, returns, complaints, declarations of revocation and sending or credit notes.
7.5 If advance payment 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 If you select the credit card payment method via Stripe, the invoice amount is due immediately upon conclusion of the contract. Payment is processed via 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.
7.7 If the SEPA direct debit payment method is selected, the invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not before the expiry of the advance information period. The direct debit is collected when the ordered goods leave the seller's warehouse, but not before the expiry of the advance information period. Advance information ("pre-notification") is any communication (e.g. invoice, policy, contract) from the seller to the customer announcing a debit via SEPA direct debit. If the direct debit is not honored due to insufficient account funds or due to incorrect bank details being provided, or if the customer objects to the debit although they are not entitled to do so, the customer must bear the fees incurred by the respective credit institution for the chargeback if they are responsible for this. The seller reserves the right to carry out a credit check when the SEPA direct debit payment method is selected and to reject this payment method if the credit check is negative.
7.8 If you select SEPA direct debit as your payment method, the invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not before the deadline for advance 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. Advance information ("pre-notification") is any communication (e.g. invoice, policy, contract) from the seller to the customer announcing a debit via SEPA direct debit. If the direct debit is not honored due to insufficient funds in the account or due to incorrect bank details being provided, or if the customer objects to the debit even though they are not entitled to do so, the customer must bear the fees incurred by the respective credit institution for the chargeback if they are responsible for this.
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 on time, it will be extended for an indefinite period 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. Good cause exists if the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed termination date or until the expiry of a notice period, taking into account all the circumstances of the individual case and balancing the interests of both parties.
8.3 Terminations can be made in writing, in text form (e.g. by email) or in electronic form via the termination mechanism (termination button) provided by the provider on its website.
8.4 After termination of the contractual relationship, the provider will make the content stored on the storage space designated for the customer available to the customer on a data storage device. Any retention rights of the provider remain unaffected.
9) Liability
9.1 The provider is liable for all contractual, quasi-contractual and legal, including tortious claims for damages and reimbursement of expenses as follows:
9.2 The provider is liable without limitation for any legal reason
- in case of intent or gross negligence,
- in the event of intentional or negligent injury to life, body or health,
- due to a guarantee promise, unless otherwise provided,
- due to mandatory liability such as under the Product Liability Act.
9.3 If the provider negligently breaches a material contractual obligation, liability is limited to the damage that is typical for the contract and foreseeable, unless unlimited liability applies in accordance with the above paragraph. Material contractual obligations are obligations that the contract imposes on the provider in accordance with its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the customer can regularly rely.
9.4 Otherwise, the provider’s liability is excluded.
9.5 The above liability provisions also apply with regard to the provider’s liability for its vicarious agents and legal representatives.
10) Changes to the Terms and Conditions
10.1 The provider reserves the right to change these terms and conditions at any time, provided that the customer agrees to the change.
10.2 The provider also reserves the right to change these terms and conditions without the customer’s consent,
- to the extent that 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 administrative decision directed against him;
- to the extent that it introduces additional, entirely new services, services or service elements that require a service description in the General Terms and Conditions, unless the previous usage relationship is adversely affected 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 provider will inform the customer about significant changes to these terms and conditions in a timely and appropriate manner. Significant changes are those that would significantly change the contractual relationship to the customer's disadvantage or would amount to the conclusion of a completely new contract. These include, for example, regulations on the type and scope of the service or on the contract term and termination modalities.
10.4 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 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 or her 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 sales or service contracts involving a consumer.
12.2 The provider is not obliged to participate in a dispute resolution procedure before a consumer arbitration board, but is willing to do so.
