(1) These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all business relationships between:
Contractor:
ASM IT Support & Solutions
Stockholtweg 4
41238 Mönchengladbach
– hereinafter referred to as the “Contractor” –
and the respective customer (hereinafter referred to as the “Client”) who makes use of the Contractor’s services.
(2) A Client within the meaning of these GTC is any natural or legal person who enters into a contract with the Contractor or makes use of the Contractor’s services.
(3) A server within the meaning of these GTC refers to a virtual server (vServer) that represents a defined portion of a physical server, which is connected to the internet and is made available to the Client by the Contractor for the provision of the agreed IT services.
(4) Description of Services
The Contractor provides, in particular, services in the areas of IT support, IT consulting, server administration, hosting services, as well as related IT services. The exact scope of services is determined in each case by the offer, the service description, or the individual agreements concluded between the Contractor and the Client.
(1) These General Terms and Conditions apply to all current and future contractual relationships between the Contractor and the Client, provided that no deviating individual agreements have been made in writing.
(2) Deviating, conflicting, or supplementary general terms and conditions of the Client shall expressly not become part of the contract unless their validity has been explicitly agreed to in writing by the Contractor.
(3) These General Terms and Conditions shall also apply if the Contractor performs the services without reservation while being aware of conflicting or deviating terms and conditions of the Client.
(1) The contract between the contractor and the client is concluded upon order confirmation by the contractor or upon the commencement of service provision. The type and scope of the services to be provided by the contractor are determined exclusively by the service descriptions agreed upon in the individual offer, the order form, or the contractor’s current online offering at the time the contract is concluded.
(2) In particular, the contractor provides the following services:
IT support and consulting services (e.g. maintenance and management of IT systems)
Provision of hosting services (webspace, server hosting, virtual servers)
Domain registration and domain administration on behalf of the client
Other individually agreed IT and telecommunications services
(3) The application for and registration of domain names is carried out by the contractor in the name and on behalf of the client. Domains are assigned exclusively by the responsible registration authority (e.g. DENIC, INTERNIC, EURid, or comparable organizations). The contractor does not guarantee the allocation or permanent availability of a requested domain name. The client may only assume that a domain name has been successfully allocated once this has been expressly confirmed by the responsible registration authority.
(4) The client is obligated to independently review and ensure the legal admissibility of the requested domains prior to placing the order and to ensure that no third-party rights are infringed. The contractor does not carry out any independent legal review.
(5) If the contractor is legally claimed against by third parties in connection with domain registration (e.g. due to trademark, copyright, or name rights infringements caused by the requested domain), the client undertakes to indemnify and hold harmless the contractor as well as the responsible registration authorities from all claims and resulting costs (including legal enforcement costs).
(1) The contract shall commence on the date specified in the contract or in the order confirmation. From this point onward, the contractual rights and obligations of both parties shall arise.
(2) Unless expressly agreed otherwise, the agreed fees shall become due for payment in full and without deduction immediately upon commencement of the contract.
(3) The client shall have a contractual right of withdrawal within 7 calendar days from the date of signing or concluding the contract. The exercise of the right of withdrawal must be made in text form (e.g. email, fax, or letter). Timely dispatch of the withdrawal notice shall be sufficient to meet the deadline.
(4) Services already rendered (e.g. setup costs, domain registrations, one-time installations, or other services already performed) shall be charged on a pro-rata basis and invoiced to the client in the event of withdrawal, provided such services cannot be reversed.
(5) Statutory consumer withdrawal rights shall remain unaffected by this provision.
(1) Unless expressly agreed otherwise, the contractual relationship is concluded with a minimum term of 24 months.
(2) After expiry of the minimum term, the contract is automatically extended by one additional month at a time, unless it is terminated by either contracting party with one month’s notice to the respective end of the term in text form (e.g. email, fax, or letter).
(3) The right to extraordinary termination for good cause remains unaffected for both contracting parties. Good cause shall exist in particular if one contracting party materially breaches its contractual obligations and fails to remedy such breach despite a written notice and the granting of a reasonable grace period.
(1) The contract may be terminated ordinarily by either party with a notice period of four weeks to the respective end of the contract term (see Section 5 of these GTC).
(2) The right to extraordinary termination for good cause remains unaffected. A good cause shall exist in particular in the event of:
payment default by the client for more than 30 days despite a written reminder,
serious or repeated breaches of contractual obligations,
the opening of insolvency proceedings or the filing for insolvency by either contracting party.
(3) Any termination must be made at least in text form (e.g. email, letter, or fax) to be valid. Compliance with the notice period shall be determined by the receipt of the termination notice by the respective contracting party.
(4) In the event of termination, the contractor is entitled to invoice services that have already been fully or partially rendered up to the effective date of termination on a pro rata basis. Any advance payments shall be refunded on a pro rata basis, if applicable.
(1) The prices valid at the time of contract conclusion, as set out in the current price list, shall apply to the use of the Contractor’s services, unless different conditions have been individually agreed upon.
(2) The Contractor shall issue a monthly invoice for the fees payable. The invoice will be provided to the Client electronically (e.g. by email) or, upon request, in written form. For postal delivery of invoices, the Contractor charges a one-time processing fee in accordance with the current price list.
(3) The Contractor reserves the right to reasonably adjust the agreed fees at the beginning of a new billing period. Any changes to the fees will be communicated to the Client in writing or by email at least four weeks prior to their effective date. In the event of such a price adjustment, the Client is entitled to an extraordinary right of termination effective on the date the adjustment takes effect. This right must be exercised within two weeks of receipt of the notification.
(4) Payment of the agreed fees shall be made monthly in advance, no later than the 5th day of each month, by direct debit initiated by the Contractor or, upon the explicit request of the Client, by bank transfer.
In the event of a returned direct debit or failed payment for reasons attributable to the Client (e.g. insufficient funds), the Client shall bear all costs and fees incurred by the Contractor as a result.
(5) If the Client is in default of payment for more than 14 days, the Contractor is entitled to temporarily suspend the provision of the contractually agreed services, in particular server or hosting services and websites. The Client remains obliged to pay the agreed fees during the suspension period. The suspension shall be lifted immediately upon receipt of all outstanding payments, including any reminder and processing fees incurred in accordance with the current price list.
(6) If the Client is in default of payment of the agreed fees for two consecutive months, or over a period exceeding two months with an amount equal to at least two monthly fees, the Contractor is entitled to terminate the contractual relationship extraordinarily and without notice and, if applicable, assert claims for damages.
(1) The Client undertakes to provide all legally required mandatory information in accordance with Section 5 of the Digital Services Act (Digitale-Dienste-Gesetz – DDG, formerly Section 5 of the Telemedia Act – TMG), in particular name, address, and authorized representatives, fully and correctly. Any changes to this information must be communicated to the Contractor without delay.
(2) The Client bears sole responsibility for all content, data, and materials provided to the Contractor (such as texts, images, graphics, videos, and other digital content). The Contractor is not obliged to generally or regularly review such content for potential legal violations.
(3) The Client guarantees that all provided materials, content, and data are free of third-party rights or that the Client holds all rights and consents necessary for their use (in particular copyrights, usage rights, trademark rights, other intellectual property rights, and personal rights).
(4) The Client shall indemnify the Contractor upon first request against all claims asserted by third parties against the Contractor due to violations of the aforementioned obligations, including any legal defense costs incurred.
(5) In the event of sufficiently substantiated third-party claims regarding content provided by the Client, or in the case of suspicion of an obvious legal violation or a violation of public morals, the Contractor is entitled to block the affected content immediately and without prior notice or to refuse its publication.
(6) If the Contractor is commissioned by the Client to remove unlawful content or to adapt such content to comply with applicable law, the contractually agreed fees shall remain payable during the adjustment period.
(7) The Contractor expressly reserves the right to terminate the contractual relationship without notice for cause in the event of repeated, serious, or unresolved violations by the Client of the above provisions, even after a warning has been issued.
(8) The Client is aware that data transmission over the internet involves risks, in particular that data may be accessed or manipulated without authorization. The Client expressly acknowledges and accepts this risk.
(1) The Client is obliged to independently create regular backup copies of all data that is transmitted or made available to the Contractor in any form and to store these backups in a secure location.
(2) In the event of data loss or a technical malfunction on the Contractor’s side, the Client is obliged to retransmit the affected data and content to the Contractor free of charge, provided that such data is still available to the Client.
(3) The Contractor assumes no liability for data loss or damage resulting from a breach of the obligation to perform regular data backups as stipulated in paragraph (1). Restoration of lost data by the Contractor shall only take place insofar as this is technically feasible and contractually agreed. The Client has no entitlement to free data recovery unless the data loss was caused by intent or gross negligence on the part of the Contractor.
(4) The Contractor shall implement appropriate technical and organizational measures to protect the data and systems entrusted to them against loss, unauthorized access, or manipulation. However, these measures do not release the Client from their obligation to perform regular independent data backups.
(1) The Contractor guarantees an average availability of the agreed services and systems of 99% per month. Up to 1% of the monthly operating time may be used for scheduled maintenance work. Wherever technically possible and reasonable, such maintenance work shall be carried out between 2:00 a.m. and 6:00 a.m.
(2) The Contractor’s liability for data loss, data transmission errors, outages, or other technical issues resulting from technical causes or internet disruptions is excluded, unless such damage is caused by intent or gross negligence on the part of the Contractor.
(3) The Contractor undertakes to remedy any disruptions that occur without undue delay, within the scope of its technical and operational capabilities. The Client is obliged to notify the Contractor of any identifiable disruptions without undue delay, but no later than 7 calendar days after becoming aware of them, in writing or by email (“Incident Report”).
The minimum time allowed for fault resolution is 24 hours from receipt of a proper Incident Report during the Contractor’s regular business hours.
(4) In the event of disruptions, the Client is entitled to the Contractor’s standard support. Standard support includes a response time of up to 8 hours from receipt of the Incident Report, exclusively within the Contractor’s regular business hours.
(5) Extended response or resolution times (“Premium Support”) as well as services outside the Contractor’s regular business hours are not part of standard support and require a separate written agreement (“Support Agreement”) between the Client and the Contractor.
(6) The Contractor’s regular business hours are:
Monday to Friday: 9:00 a.m. to 5:00 p.m.
excluding public holidays at the Contractor’s place of business.
(1) The Contractor shall be liable to the Client for damages caused intentionally or by gross negligence by the Contractor, its legal representatives, or its vicarious agents. Liability for slight negligence is excluded insofar as no material contractual obligation (“cardinal obligation”) has been breached.
(2) In the event of a breach of a material contractual obligation, the Contractor shall also be liable in cases of simple negligence; however, such liability shall be limited to the typical and foreseeable damage. Typical and foreseeable damage shall generally be limited to the amount of the annual contract value, unless expressly agreed otherwise in writing in an individual case.
(3) The above limitations of liability shall not apply to damages resulting from injury to life, body, or health, or in cases of mandatory statutory liability (in particular under the Product Liability Act or in the event of an expressly guaranteed characteristic).
(4) Claims for damages against the Contractor shall be subject to the statutory limitation periods, but shall expire at the latest one year after the Client becomes aware, or through gross negligence fails to become aware, of the damaging event.
(5) To the extent that the liability of the Contractor is excluded or limited, this shall also apply equally to personal liability claims against its employees, representatives, and vicarious agents.
(1) Accuracy and Currency of Customer Data
The Client warrants that all data provided within the scope of the contractual relationship is complete, accurate, and up to date. Any changes to contact details or other relevant contractual information must be communicated to the Contractor without undue delay.
(2) Prohibition of Unlawful Content and Disruptive Software
The Client undertakes not to upload, distribute, or make available any content on the provided storage space that is unlawful, violates official regulations, or infringes upon the rights of third parties. In particular, the Client agrees not to use or provide any content or software that could jeopardize or impair the security, stability, or integrity of the Contractor’s systems and networks.
(3) Responsibility for Legal Compliance
The Client bears sole responsibility for ensuring that their content and data do not violate statutory provisions, official requirements, third-party rights (e.g. copyrights, trademark rights, name rights, data protection rights), or standards of public decency. In particular, the Client guarantees not to provide or cause to be provided any content that glorifies violence, is discriminatory, pornographic, defamatory, or otherwise offensive.
(4) Prohibition of Misuse
The Client undertakes, in particular, to:
not distribute or cause the distribution of mass or unsolicited advertising (“spam”),
not operate open email relay servers,
not use false sender details or conceal the sender’s identity when sending emails,
not cause excessive use of the Contractor’s resources.
(5) Duty of Control and Reporting of Legal Violations
The Contractor is not obliged to regularly monitor the Client’s content or activities or to actively search for legal violations. However, the Client undertakes to immediately block or remove any unlawful or infringing content that becomes known to them and to inform the Contractor without delay.
(6) Measures in Case of Violations or Disruptions
In the event of a suspected threat to the security and integrity of the Contractor’s systems or in the case of reasonable suspicion of unlawful content or activities, the Contractor is entitled to block, deactivate, or remove the affected content or programs. The Contractor is also entitled to temporarily interrupt the connection of such content to the Internet in whole or in part. The Contractor shall inform the Client without undue delay of such measures.
(7) Liability and Indemnification in Case of Legal Violations
The Client shall indemnify and hold the Contractor harmless, upon first request, from all third-party claims arising from content provided by the Client or other legal violations attributable to the Client. This includes the assumption of all associated costs, in particular court costs, legal fees, and other costs of legal enforcement or defense.
(8) Obligation to Pay Damages
If the Client breaches their obligations under the preceding provisions, they shall be liable to the Contractor for all resulting direct and indirect damages, in particular financial losses, including loss of profit and costs incurred for legal defense.
(1) Any collateral agreements as well as additions to or amendments of this contract, including these General Terms and Conditions, shall only be effective if made at least in text form (e.g. email, fax, or letter).
(2) Verbal collateral agreements and deviations from these General Terms and Conditions shall have no legal effect unless they are confirmed without delay in writing or in text form.
(3) Any waiver of or amendment to the text form requirement stipulated in this section shall itself require text form.
(1) The place of performance for all contractual services and obligations of both parties shall be the registered office of the contractor, currently Mönchengladbach, insofar as legally permissible.
(2) The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship shall also be Mönchengladbach, provided that the client is a merchant, a legal entity under public law, or a special fund under public law, or does not have a general place of jurisdiction within the Federal Republic of Germany.
(3) Mandatory statutory provisions regarding exclusive places of jurisdiction (e.g. for consumers) shall remain unaffected.
Should any provision of this contract or these General Terms and Conditions be or become wholly or partially invalid, void, or unenforceable, the validity of the remaining provisions shall remain unaffected.
In place of the invalid or unenforceable provision, a provision shall be deemed agreed that comes as close as legally possible to the economic intent of the invalid provision. The same shall apply in the event of any contractual gaps.
