Standard Terms of Business

Terms of Business

§ 1 Area of Application

(1) 23M’s Standard Terms of Business shall apply exclusively. 23M does not recognize any Standard Terms of the customer that conflict with or differ from its Standard Terms of Business, unless 23M has expressly consented to their application. 23M’s Standard Terms of Business shall apply even if 23M executes a contract with the customer, without reservation of rights, although it is aware that the customer’s Standard Terms conflict with or differ from its own Standard Terms of Business.

(2) 23M’s Standard Terms of Business shall apply to all future transactions with the customer, even if they are not expressly referred to in a subsequent transaction.

(3) 23M’s customers are all entrepreneurs. An “entrepreneur” within the meaning of these Standard Terms of Business is a natural person or legal entity, which enters into a business relationship with 23M as part of its commercial or independent professional activities (§ 14 of the German Civil Code [BGB]).

§ 2 Changes to the Standard Terms of Business

(1) 23M shall be entitled to change and adjust the Standard Terms of Business during the term of the contract. 23M shall send the amended Terms to the customer in text form and make special reference to the new revisions. At the same time, 23M shall grant the customer a reasonable period of time to declare whether it accepts the amended Standard Terms of Business for further use of 23M’s services. If no declaration is made within the aforementioned period of time, the amended Terms shall be deemed to have been accepted. 23M shall expressly inform the customer of this legal consequence at the start of the period. If the customer objects to the amendments to these Terms, 23M shall be entitled to terminate the contract, effective immediately, on the date that the Standard Terms of Business take effect with respect to the other customers.

§ 3 General Obligations of the Customer

(1) The customer shall fulfill the obligations placed on it with respect to the development [Leistungsabwicklung] and provision of services. The customer may only use the services provided by 23M for the contractually agreed-upon purposes. The customer is prohibited from making any use outside of these purposes. This includes, in particular, any action that results in excessive loads to the system or disruptions of the system. In particular, the customer:

shall identify the intended users of the services provided by 23M. The customer shall promptly report any change in the designation of users caused by organizational changes, employee changes, and the like;
shall protect the use and access authorizations provided to the users and the identification and authentication safeguards against access by third parties and shall refrain from disclosing them to unauthorized users;
shall ensure that industrial property rights and copyrights are respected (e.g. when receiving third-party texts and data on 23M’s server);
shall comply with the applicable data protection laws, particularly those in effect in Germany, and shall require the employees it utilizes in connection with the services provided by 23M to observe data secrecy in accordance with § 5 of the German Federal Data Protection Act [BDSG], unless they are already generally obliged to do so;
shall obtain the necessary consent of the data subjects to the extent that the customer collects, processes, or uses personal data within the framework of its use of the services provided by 23M and no statutory permit is required under the facts;
shall not use the services provided by 23M in an abusive, illicit, or unlawful manner – or allow them to be so used; in particular, the customer shall not send out any informational offerings with illegal or immoral content or make reference to information that serves to incite the populace, encourage criminal acts, or glorify or trivialize violence, that is sexually offensive or pornographic or is likely to seriously endanger the morals of children or youth or adversely affect their welfare, or that could harm the image of 23M;
shall refrain from any attempt to retrieve information or data without authorization, either itself or through unauthorized third parties, or to interfere with the programs operated by 23M or have others do so or to penetrate 23M’s data networks without authorization;
shall not use its ability to exchange electronic messages in an abusive manner in order to send unrequested messages or information to third parties for advertising purposes ("spamming");
shall indemnify 23M against the claims of third parties based on abusive, illicit, or unlawful use of the services provided by 23M or carried out with approval or resulting from data protection law, copyright law, or other legal disputes related to the use of the services provided by 23M. If the customer realizes or should have realized that such a violation is threatened, it shall be obliged to promptly inform 23M of this;
shall back up the data transmitted to 23M on a regular basis commensurate with the level of risk, but at least once a day, and create its own back-up copies to ensure it can reconstruct any lost data or information;
shall check data and information for viruses before transmission and use state-of-the-art virus protection programs for this purpose; and 12. shall secure the databases in the 23M system by download until the end of the business relationship with 23M, since the possibility cannot be excluded that the customer will no longer be able to access these databases after the end of the business relationship.

(2) The customer shall indemnify 23M against all third-party claims asserted against 23M for rights violations that the customer has committed or for which the customer is responsible. The customer shall assume all the necessary costs of a legal defense in this regard.

§ 4 Contractually Prohibited Uses

(1) 23M shall be entitled to block access to the services provided by 23M and the customer’s data if the customer unlawfully violates one of the cardinal obligations set forth in § 3 (1). Access shall not be restored until the violation has been permanently eliminated and the risk of repetition has been dispelled by the issuance to 23M of an appropriate declaration of discontinuance with a penalty clause. The customer shall also pay compensation in this case.

(2) 23M shall be entitled to block access to the services provided by 23M and the customer’s data if third parties assert claims due to a rights violation, which is not obviously unfounded. If 23M becomes aware of a possible rights violation through the use of the services provided by 23M, 23M shall promptly inform the customer of this in text form.

(3) 23M shall be entitled to delete the relevant data if there is a violation of § 3 (1).

(4) If there is an unlawful violation by a user of the obligations set forth in § 3 (1), the customer shall, upon request, promptly provide 23M with the information needed to assert claims against the user, particularly the user’s name and address.

§ 5 Default

For the duration of any substantial payment default by the customer, 23M shall be entitled to withhold its quid pro quo (e.g. access to the services provided by 23M and the customer’s data). The customer shall also pay compensation in this case.

(2) If the customer is in default

with the payment of compensation or a substantial portion thereof for two consecutive months or
with the payment of compensation equal to the fee for two months for a period of more than two months,

23M shall be entitled to terminate the contract, effective immediately, and demand liquidated damages of one fourth of the remaining compensation until the expiration of the regular contract term – due immediately in a lump sum.

(3) The amount of damages can be set higher or lower if 23M proves higher losses or the customer proves lower losses.

(4) 23M reserves the right to assert additional claims for default in payment.

§ 6 Handling Passwords, Customer Accounts

(1) The customer shall keep his passwords for accessing 23M’s services secret and in safe storage and shall not make them accessible to third parties. If a third party gains knowledge of the password, the customer shall promptly inform 23M of this by e-mail or in writing, so that the old password can be blocked and a new password can be issued. The customer is not entitled to make his customer account available to third parties. The customer notes that it is fully responsible for the actions of any third party to whom it makes its customer account available.

§ 7 Liability, Force Majeure

(1) 23M shall have unlimited liability to the customer for losses caused by 23M, its legal representatives, or agents through wrongful intent or gross negligence.

(2) 23M shall have unlimited liability for loss of life, bodily injury, and impairment of health caused by slight negligence. Otherwise, 23M shall only be liable to the extent that it has breached a cardinal contractual obligation (cardinal obligation). In such cases, liability shall be limited to compensation for typical, foreseeable losses. For any single individual loss event, 5 / 8 liability shall be limited to twice the value of the contract. If compensation is paid on a recurring basis, liability shall be limited to the amount of compensation for a contract year. In addition and as a priority, 23M’s liability for compensatory damages and reimbursement of expenses due to slight negligence – on whatever legal ground – shall be limited to a total amount of 200 percent of the compensation agreed upon when the contract was signed. This paragraph shall not affect liability under § 7 (1) and § 7 (2) Sentence 1.

(3) 23M shall be exempt from strict liability for damages (§ 536a of the BGB) for defects in existence when the contract was signed. § 7 (1) and § 7 (2) Sentence 1 shall remain unaffected by this.

(4) This shall not affect liability under the provisions of the Product Liability Act.

(5) 23M shall be released from its obligation to perform, if and to the extent that the non-provision of services is attributable to the occurrence of force majeure after the signing of the contract. Examples of force majeure shall include war, strikes, civil unrest, expropriation, significant changes in the law, storm, flood, and other natural catastrophes (particularly water leaks, power outages and interruptions, or destruction of data transmission lines) and other circumstances for which 23M is not responsible. Each party shall promptly inform the other party of the occurrence of an instance of force majeure in writing.

(6) If the loss of data is the fault of 23M, 23M shall be liable solely for the costs of copying the data from the back-up copies generated by the customer and restoring the data that would have been lost if the data had been properly backed up.

§ 8 Price Increases

(1) 23M shall be entitled to increase the agreed-upon prices to a reasonable extent, by no more than 5%, by issuing a written notice of the change and giving three calendar months’ notice. 23M shall only raise prices once per calendar year.

§ 9 Internet domain names

(1) The customer can hire 23M to apply for and register domain names with the relevant registry offices.

(2) 23M shall provide the following services in this regard:

23M shall take all necessary factual and technical measures to register the domain name desired by the customer
23M shall first determine whether the domain name requested by the customer has already been awarded to a 6 / 8 third party. If this is the case, 23M shall promptly inform the customer. 23M shall have no further obligations with respect to domain names that have already been awarded.
To the extent that the domain name desired by the customer has not been awarded to a third party, 23M shall apply for registration of the domain name with the relevant registry offices on behalf of the customer. 23M is not liable for the availability of the domain name.
23M does not warrant successful registration by the registry office.

(3) The customer agrees to honor the business and award terms and conditions of the registry office (e.g. Denic e.G.), which relate to the desired top level domain. The content of these business and award terms and conditions are available on the Internet. Upon request, 23M will inform the customer of the exact Internet website. The customer shall promptly inform 23M if it does not wish to honor one or more of the registry office’s business and award terms and conditions.

(4) When registering a domain name with certain registry offices (e.g. Denic e.G.), a natural person must be named as the owner or as a general contact person for questions. The customer shall notify 23M of the person who is being designated for this purpose. The customer agrees to ensure that the person it designates is in conformity with the particular business and award terms and conditions and will comply with the obligations under these terms and conditions. The customer shall indemnify 23M against all liability in this regard.

(5) The customer shall be liable if the desired domain name infringes the rights of third parties (e.g. under the laws governing names, trademarks, or competition).

§ 10 The Sale of Hardware

(1) Der Kunde hat die Hardware hinsichtlich der technischen Daten / Kapazität / Geschwindigkeit und ähnlichem aufgrund des Angebots von 23M selbst zusammengestellt und bestimmt. Insofern erfolgte auch keine Beratung von 23M. Wenn der Käufer eine solche Beratung wünscht, insbesondere hinsichtlich Dimensionierung oder genauer Auswahl bzw. Konfiguration, so werden die Vertragspartner hierüber einen gesonderten Vertrag schließen.

(2) Der Kunde erwirbt das Eigentum an der Hardware erst mit der vollständigen Bezahlung der dafür in Rechnung gestellten Vergütung.

(3) Unless otherwise agreed, installation and familiarization are not covered by the contract.

(4) Any delivery deadlines shall be separately confirmed by 23M or agreed upon by the contracting parties in a separate writing and shall not be binding until this occurs.

(5) Unless otherwise agreed, the customer shall promptly undertake to install and configure the hardware itself. Unless otherwise agreed, the customer shall be directly responsible for ensuring that the necessary conditions for operating the hardware (power supply, space, air-conditioning, and the like) are provided in due time in accordance with the manufacturer’s guidelines, technical descriptions, and specifications.

(6) The customer is responsible for backing up the data on a regular basis. If the loss of data is the fault of 23M, 23M shall be liable solely for the costs of copying the data from the back-up copies generated by the customer and for restoring the data that would have been lost if the data had been properly backed up.

(7) The limitation period for claims for defects in the hardware shall be one year from delivery.

§ 11 Serverhousing/Colocation

(1) As part of server housing/colocation, 23M offers the customer access to 23M’s communications infrastructure in its “Telehouse Deutschland GmbH” Kleyerstraße 75-87, 60326 Frankfurt am Main, Germany. 23M shall also provide the customer with collocation space in the aforementioned Computer Center. The specifics and the scope of the access are governed by the written Customer Order.

(2) 23M shall select the colocation space for the customer within the context of its contractual obligations and shall assign it to the customer. 23M shall be entitled to assign new colocation space to the customer during the term of the contract with a reasonable notice period.

(3) After prior notification, 23M shall permit the customer, or authorized third parties, to enter the Computer Center at any time (24 hours/day, 7 days/week), in accordance with the Computer Center’s access rules, to perform necessary maintenance or repair work. “Authorized third parties” are persons whom the customer has previously identified to 23M in writing a reasonable time in advance and whose authorization has been confirmed by 23M. 23M shall be entitled to refuse access to the Computer Center to the customer, or authorized third parties, if it fears that said person(s) will breach obligations under the underlying contractual relationship.

(4) The customer shall only use the colocation space for the installation, storage, and operation of its hardware systems and within the scope of the contract, including the annex entitled “Technical Specifications for the Use of Colocation Space.” The customer shall be directly responsible for installation, storage, and integration of the hardware systems. To the extent that it is necessary to connect the hardware systems to – or disconnect the hardware systems from – the 23M systems, this work shall be done by 23M itself. 23M will bill the customer for the necessary work in accordance with the 23M price list. The customer shall be directly responsible for removing its hardware systems after the end of the contract at its own expense.

(5) The customer shall give 23M written notification of the hardware used in the colocation space. The notification shall be given promptly after the hardware has been brought into the colocation space. 23M shall send the customer appropriate data sheets for this purpose. Notification must be solely through the use of these data sheets.

(6) The customer must also give notice in accordance with § 11 (5) if the customer replaces hardware or removes it from the colocation space.

(7) The customer shall properly maintain its hardware systems and its assigned colocation space. This includes, in particular:

The customer shall conduct itself so that there is no disruption of the energy supply to the premises.
The customer shall regularly service its hardware systems to ensure their safe operation and prevent any harm to the property of others, particularly the building and other hardware systems, as well as any loss of life, bodily injury, or impairment of health.
The customer shall appropriately insure its hardware systems against property damage. The customer shall also appropriately insure against other risks connected with its hardware systems or their maintenance (particularly interruptions of operations and personal injury).
The customer warrants that its hardware systems are approved for their intended use and conform to the technical standards and legal provisions in Germany. The same applies to the installation and operation of the hardware systems by the customer and maintenance by the customer.

§ 12 Applicable Law, Place of Performance, Jurisdiction

(1) The laws of the Federal Republic of Germany shall apply exclusively, excluding international private law and the UN Convention on Contracts for the International Sale of Goods. The contract language is German.

(2) The place of performance and the place of jurisdiction for all disputes arising from the contractual relationship between the customer and 23M shall be where 23M has its registered office if the customer is a businessman, a legal entity under public law, or a public law special fund.