PART 1 GENERAL TERMS AND CONDITIONS

§ 1 Applicability

(1) xTom GmbH, Kreuzstraße 60, 40210 Düsseldorf (hereinafter referred to as the “Provider”) shall deliver its services exclusively on the basis of these general terms and conditions of business. These general terms and conditions of business shall also apply to future agreements concluded between the parties relating to the areas of hosting, dedicated servers, datacenter colocation, IP transit and domains, even without any further explicit reference thereto.

(2) We shall not recognise terms and conditions of the Client that deviate from our own, unless we had expressly agreed thereto in writing. Our general terms and conditions shall apply even when we unconditionally supply goods and services to the Client while being aware that the Client’s general terms and conditions contradict our terms or are different therefrom.

§ 2 Obligations of the Provider

(1) The obligations of the Provider are outlined in the service specification for the respective product. Other assurances, service commitments or supplementary agreements shall only become effective when they are confirmed in writing by the Provider.

(2) The Provider shall be entitled to expand the scope of his services, adapt and/or improve them to keep pace with technical progress. This shall apply in particular where the adaptation appears to be necessary in order to prevent misuse or if the Provider is required to adapt his services in order to comply with statutory regulations.

(3) Should the Provider deliver additional services without charging an additional fee, the Client shall have no right to claim performance. The Provider shall, within a reasonable period, be entitled to discontinue such services previously made available free of charge, to amend such services or to only offer such services against payment. In such cases the Provider shall inform the Client in good time thereof.

(4) The Provider shall only be under obligation to provide the Client with technical support in line with the contractually agreed services. Over and above this the Provider shall not provide the Client with any support services free of charge. The Provider shall not provide direct support for the Client’s customers unless otherwise agreed in writing.

(5) Where the Client has been provided with fixed IP addresses the Provider reserves the right to change the IP address(es) allocated to the Client, should this become necessary for technical or legal reasons. The Client is not entitled to a particular server unless expressly assured in writing. The Client is aware that it may be necessary in the normal course of business to migrate him to another server without prior approval. The Provider will inform the Client about such changes according to this clause no. 5.

§ 3 Obligations of the Client

(1) The Client shall ensure that the information he provides is correct and complete. He undertakes to immediately inform the Provider of any and each change to the contact details he has given, and of any other data that is necessary for fulfilling the contract. The Client confirms that he is at least 18 years old and able to enter into contracts according to the applicable laws.

(2) The Client shall, on a daily basis, make/have made backup copies of all data he transfers to the Provider’s server and that may not actually be stored on the server, in order to ensure the rapid and cost-effective recovery of the data in the event of a system failure. In the event of the loss of data the Client shall re-upload the affected data files to the Provider’s server and restore the configurations free of charge.

(3) The Client may not infringe statutory prohibitions, moral standards or the rights of third parties (copyright law, trademark law, rights to the name and data protection law etc.) through his use of his website or the banners that appear on the website. The Client may not enter its website details into search engines when making such entries, if and insofar as the Client infringes statutory prohibitions, moral standards or the rights of third parties through his use of keywords and similar technologies. In the event of any infringement of one of the aforementioned obligations, the Provider shall be entitled to suspend the provision of his services with immediate effect or to block access to the Client’s information.

(4) The Client undertakes to regularly change the passwords received from the Provider for the purpose of accessing his services and to keep them strictly confidential. The Client shall immediately inform the Provider as soon as he becomes aware that the password has become known to unauthorised third parties.

(5) When designing his website the Client undertakes not to use technologies that place excessive stress on the Provider’s installations. The Provider shall be entitled to block websites that use such technologies so they cannot be accessed by third parties, until such time as the Client has removed/deactivated these technologies. This shall not apply where Clients have sole use of entire servers (dedicated hardware).

(6) The Client furthermore undertakes not to use the resources made available by the Provider for purposes that infringe statutory prohibitions, moral standards or the rights of third parties. Such purposes shall include the following in particular:

• (a) Unauthorised access to third party computer systems (e.g. hacking);
• (b) Disablement of third party computer systems by sending/forwarding of data streams and/or e-mails (e.g. DoS/DDoS attacks/spam/mail-bombing);
• (c) Searching for open ports (access) to third party computer systems (e.g. port scanning);
• (d) Sending of unwanted commercial e-mails (junk mails), unless the express permission of the recipient has been obtained or permission therefor has been otherwise granted;
• (e) The falsification of IP addresses, mail and news headers or the dissemination of malicious software. In the event that the Client infringes one or more of the aforementioned obligations, the Provider shall be entitled to suspend the provision of all services with immediate effect. We expressly reserve the right to assert claims for damages.

(7) Where the transmission of a certain volume of data during an invoicing period has been agreed with the Client, the Client shall monitor this limit. Should the volume of data transferred (traffic) exceed the upper limit agreed with the Client for the respective time period the Provider shall invoice the Client for the corresponding amount for the excessive data traffic at the prices agreed therefor.

(8) Where the Client independently administers, installs or distributes the licences installed on the servers, he undertakes to only ensure correct licensing.

§ 4 Conclusion of the contract, contract term, termination

(1) The contract shall become effective upon acceptance by the Provider of the Client’s offer to enter into a contract. The contract shall either be expressly accepted or shall be deemed to be accepted as a result of the Provider commencing performance of the service.

(2) Unless otherwise agreed, the minimum contract term shall be 12 months and the period of notice for ordinary termination of the contract shall be 1 month to the end of the contract term. Unless agreed to the contrary and in the event that no notice of termination is given, the contract shall be automatically extended by the minimum contract term. However, if this is longer than one year the extension shall only be for one year.

(3) The right of both parties to give extraordinary notice of termination for good cause shall remain unaffected. Good cause shall be deemed to exist for the Provider in particular if:

• (a) If the Client is in default with payment of the charges by an amount equivalent to two monthly basic rates;
• (b) In the event that the Client negligently violates a material contractual obligation and does not remedy the situation within a reasonable period of time.

(4) Notice of termination shall be made in writing in order to become effective. You may also give notice of termination by e-mail provided this complies with the electronic form requirements pursuant to § 126 (a) BGB (German Civil Code) (the so-called qualified electronic signature). Where the Provider makes a corresponding termination function available, the contract can also be effectively terminated from within the support portal. Notwithstanding the previous regulations, consumers (acc. to §13 BGB) can always give notice of termination in text form.

(5) For the purpose of domain registration, deviating provisions sometimes apply in relation to termination and these are set forth in § 14 of these general terms and conditions of business.

§ 5 Prices and payment

(1) Usage-independent charges are due and payable in advance for the corresponding contract term, provided that a differing invoicing period has not been agreed with the Client. Usage-dependent charges become due and shall be paid at the end of the corresponding invoicing period. All charges shall be based upon the prices respectively agreed with the Client.

(2) xTom is entitled to change the fees at the beginning of the next contract period with a reasonable notice period of at least one month. If the Client does not object to the change within a reasonable period of time set by xTom, the change is considered approved. xTom informs the Client in the change notification that the change will take effect if he does not object.

(3) The Client is in default, even without a reminder, if he does not pay the amount due within ten calendar days of receipt of the invoice.

(4) In case of default, xTom charges interest of ten percent annually as well as a reminder fee for each reminder in accordance with the current price list, unless the Client can prove that damage has not occurred at all or to a significantly lesser extent. The statutory interest rate is in any case the minimum interest rate. xTom reserves the right to assert further claims due to late payment, as well as the reimbursement of the necessary costs of appropriate out-of-court operational or contribution measures, insofar as these are in a reasonable relationship to the claim being operated. In particular, xTom is not obliged to provide further advance services if the Client has been in arrears with an amount of at least one monthly basic fee for at least two weeks.

(5) In case of a change in the statutory sales tax rate, xTom is entitled to adjust the fees for the relevant contractual goods or services to the changed sales tax rate from the time the change takes effect. If the sales tax rate is reduced as part of the change, xTom is obliged to make a corresponding adjustment.

(6) For payments made using PayPal the corresponding PayPal terms and conditions shall apply in addition to these terms and conditions. The Client authorises the Provider to collect the corresponding invoice amount from his PayPal account.

(7) In the case of the temporary blocking of services, the Client’s obligation to pay shall not be affected.

(8) The Client may offset claims against the Provider only against undisputed or legally enforceable counterclaims. This shall not apply to the Client’s warranty claims, where these have been set off against the Provider’s claims for payment.

(9) Private customers will be charged the statutory rate of sales tax applicable in their respective EU country. The sales tax is not included in the listed prices.

(10) Billing period change requests will be considered on a case by case basis, at xTom's sole discretion. We reserve the right to refuse any billing period change request without reason. If you sign up on our monthly rate and then at a later date wish to submit a change request for a quarterly or other prepaid billing period you must give us at least 10 days notice via the support portal before your next due date. Failure to provide notice will result in your current billing period staying in effect for one more period, and the change, if accepted by management, will take effect on the next period after that.

§ 6 Warranty

(1) The Client shall notify the Provider immediately of any defects and assist the Provider in the event of possible defect rectification work by making every effort to assist, in particular by taking all reasonable measures in terms of ensuring data security.

(2) The Provider points out that, given the current state of the art, it is not possible to create hardware and software that functions flawlessly for all combinations of applications or that can be protected against any and all forms of manipulation by third parties. The Provider gives no guarantee that the hardware and software it provides will meet the requirements of the Client or that it is suitable for certain applications and furthermore that the hardware and software will function without crashing, is free of defects and free of malicious software. The sole warranty given to the Client by the Provider is that at the time the hardware and software is either used or provided, it will function essentially in accordance with the manufacturer’s specification under normal operating conditions and with normal maintenance.

§ 7 Liability

(1) Irrespective of the legal basis, the Provider shall only be held liable in accordance with the following provisions

(2) The Provider shall be liable in cases of intent and gross negligence in accordance with the statutory provisions.

(3) In the case of simple negligence, the Provider shall only be held liable in the event of a breach of a material contractual obligation, the proper fulfillment of which constitutes a condition sine qua non and on the fulfillment of which the customer regularly relies and may rely (cardinal obligation). In such cases the Provider’s liability shall be limited to the loss or damage that is foreseeable and typical for the type of contract.

(4) In the case of simple negligence, liability for all other damages shall be excluded, in particular for consequential losses, indirect losses and lost profits.

(5) The extant limitations shall not apply in the case of death, physical injury or damage to health or in the event of liability claims in accordance with the Product Liability Act.

(6) Where the Provider’s liability is excluded or limited the same exclusions and limitations shall also apply to the Provider’s employees, other staff, representatives and vicarious agents.

(7) Within the scope of application of the German Telecommunications Act (TKG) the provisions regarding liability set forth in § 44a of the Act shall remain unaffected in any case.

§ 8 Data protection

(1) The Provider collects, processes and uses the Client’s personal data in accordance with the statutory data protection provisions. Supplementary information on this issue can be found in the data protection declaration of xTom GmbH.

(2) xTom expressly advises the customer that data protection for data transfers in open networks, such as the Internet, cannot be fully guaranteed according to the current state of the art. The customer knows that the provider can view the page offer saved on the web server and possibly also other customer data stored there at any time from a technical point of view. Other Internet participants may also be technically able to intervene in network security without authorization and to control message traffic. The customer is fully responsible for the security of the data transmitted by him on the Internet and stored on web servers.

§ 9 Proprietary rights, licensing agreements

(1) The Provider grants the Client the non-exclusive (simple) right to use the Provider’s software and third party software. This right of use shall be limited to the term of the contract. Transferring the right to use the software, other than with the agreement of the Provider for the purpose of contract transfer, or granting sub-licences for the software to third parties is not permitted. Continued use of the software following termination of the contract term is not permitted. The Client shall delete any copies of all software provided following termination of the contract term.

(2) Furthermore, the license agreements of the respective software manufacturer and, where appropriate, the manufacturer’s or software-specific additional terms and conditions of the Provider shall also apply.

§ 10 Indemnity

The Client undertakes to indemnify the Provider internally against any and all third-party claims that arise from unlawful or illegal activities of the Client and against material errors in the information provided by the Client. This shall apply in particular to infringements of copyright law, trademark law, data protection law and competition law and to breaches of §3 (8) of this contract.

§ 11 Right of withdrawal

(1) Right of withdrawal

You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period will expire after fourteen days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us, xTom GmbH, Kreuzstraße 60, 40210 Düsseldorf, Telefon: +49 211 97635976, E-Mail: [email protected] of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax, Email or via the secure online administrations interface). You may use the model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Model Withdrawal Form

(If you want to withdraw from the contract, please fill out this form and send it back)

To the attention of:

xTom GmbH
Kreuzstraße 60
40210 Düsseldorf
Telefon: +49 211 97635976
E-Mail: [email protected]

With reference to the following contract:

I/We (*) hereby give notice that I/We (*) withdraw from my/ our (*) contract for the provision of the following service:

- Ordered on (*)/ received on (*)
- Name of consumer(s)
- Customer number of the consumer (s)
- Contract number of the consumer (s)
- Address of consumer(s)
- Signature of consumer(s) (only if this form is notified on paper)

(*) Delete where inapplicable.

(2) Consequences of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us) without undue delay and in any event not later than fourteen days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise, in any event, you will not incur any fees as a result of such reimbursement. If you requested to begin the performance of service during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.

§ 11 Applicable law, place of jurisdiction

(1) The laws of the Federal Republic of Germany shall apply with the exception of the unified United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) Provided the Client is a registered trader, a corporate body under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be Cologne. The Provider shall furthermore be entitled to bring legal action against the Client at the Provider’s general place of jurisdiction.

(3) The provider does not take part on a dispute resolution in front of a consumer arbitration board.

§ 12 Alternative Dispute Resolution

The European Commission provides a platform for online dispute resolution (OS). The platform can be found at https://www.ec.europa.eu/consumers/odr. Consumers have the option to use this platform to resolve their disputes.

We are not obligated to participate in a dispute settlement procedure before a consumer arbitration board and will decide on a case-by-case basis individually.

§ 13 Other provisions

(1) With the exception of notices of termination, all information and notices issued by the Provider can be addressed to the Client through electronic communication channels, in particular via the support portal or by email to the e-mail address stipulated by the Client.

(2) Should a provision of this contract be or become invalid or unenforceable or should it contain a loophole that must be closed, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision the parties shall agree upon a new provision which comes as close as possible to the commercial purpose of the invalid or unenforceable provision. The same shall apply in the case of a loophole.

PART 2 SPECIAL CONDITIONS

§ 14 Special conditions applicable to domains

(1) Where the Client registers a domain name via the Provider, the contract shall come into effect directly between the Client and the respective issuing service or registrar. In such cases the Provider shall act for the Client in the capacity of an agent.

(2) The registration of domains is performed using an automated procedure. The Provider has no influence over the delegation of domain names. The Provider therefore assumes no liability in the event that the domain names for which the Client has applied cannot be allocated (delegated) at all or that the domain names are unencumbered by third party rights.

(3) The Client undertakes to provide a reasonable degree of cooperation during the registration, transfer and deletion of domains and when making changes to entries in the databases of the issuing agencies.

(4) The Client shall ensure that his domains and the content that can be accessed via these domains do not breach statutory regulations or infringe the rights of third parties. Depending upon the type of domain and/or the objective of the associated content, other national legislation must also be observed.

(5) Should third parties be able to substantiate that domains or their content infringe their rights or should the Provider become convinced that, on the basis of objective factors, an infringement of the law is probable, the Provider may temporarily block such content and implement measures to render the corresponding domain unavailable.

(6) The Client shall indemnify the Provider against third party claims for compensation resulting from the impermissible use of an Internet domain or its associated content.

(7) Should the Client waive his right to use a domain name vis-à-vis the respective issuing service or registrar he shall immediately inform the Provider thereof.

(8) Termination of the contractual relationship with the Provider shall not materially affect the existing registration contract for a domain concluded between the Client and the respective issuing service or registrar. However, cancellation orders relating to the domain registration must still be addressed to the Provider because the Provider manages the domain for the domain owner and therefore messages from the domain owner, including for contract termination, are to be regularly forwarded via the Provider to the respective issuing service or registrar.

(9) In order for the simultaneous termination of the domain registration to become effective when the customer terminates the contractual relationship with the Provider, that the domain is also to be cancelled and that it may be deleted. If the Client is not also the domain owner, the cancellation or deletion order shall require written consent from the domain owner or Admin-Cs.

(10) The period of notice for issuing domain cancellation orders to the Provider for all domains connected with the domains .com, .net, .org, etc. shall be 1 month to the end of the contract term for domain registration.

(11) With this in mind, the Provider shall immediately forward delayed domain cancellation orders to the domain registration service. We make clear however, that in the event that a cancellation order affecting the domain registration contract is not issued by the Client in good time and the period for which the domain is registered with the issuing service or registrar therefore becomes extended, the Client’s obligation to pay for the domain over this extended period shall remain effective.

(12) If the Client terminates the contractual relationship with the Provider, but does not issue any express instructions relating to what should happen to the domains that were previously registered through the Provider, the Client’s obligation to pay for the domain again remains effective. Following fruitless requests to the Client, sent to the e-mail address provided by the Client, to issue instructions regarding the domains within a reasonable period of time, the Provider shall be entitled to transfer the domains to the direct administration of the respective domain registration service or to release the domains on behalf of the Client. The same shall apply in the event that the Provider terminates the contractual relationship with the Client.

(13) If domains are not transferred to the administration of a different provider at the latest at the time the agency contract for domain management (concluded between the Client and the Provider) is terminated, the Provider shall be entitled to transfer the domains to the direct administration of the respective domain registration service or to release the domains on behalf of the Client. This shall apply in particular in the event that the Client has issued instructions relating to the transfer of the domain to another provider, but the instructions were not actioned in time.

§ 15 Special conditions applicable to hosting products, dedicated and virtual servers

(1) The Client provides explicit assurance that the provision and publishing of his websites' contents or data neither infringes German law nor other relevant national legislation, in particular copyright law, trademark law, rights to the name, data protection law and competition law. The Provider reserves the right to temporarily block content that appears to be dubious in this respect. The same shall apply if the Provider is requested by a third party to modify or delete content on hosted websites, because it apparently infringes upon third party rights.

(2) In the event that the Client provides evidence that there is no risk of infringing third party rights or any other infringement of the law, the Provider shall make the websites in question available again to third parties. The Client herewith indemnifies the Provider against all third party claims for compensation resulting from impermissible content on one of the Client’s websites.

(3) The Client shall be prohibited from providing the following services:

• Internet Relay Chat (IRC) services
• Anonymisation services
• P2P online exchanges
• Discovery of IRC services running on your server will result in immediate service suspension which will result in a server reconnection fee if we are satisfied that you have removed the service. We reserve the right to immediately terminate servers that are running IRC services. As with any terminated account, no refunds for any prepaid service period will be made.

(4) We typically aim to deploy servers within 2 - 10 business days, however for various reasons we may need up to 60 calendar days to deploy your server. We will deploy your server as soon as possible. No refund will be provided for servers that are cancelled while waiting for deployment.

(5) System software support is only provided for "fully managed" server customers. Absolutely no software support is provided for "unmanaged" server customers, unmanaged customers can certainly submit support requests relating to replacing failed hardware. All servers come with integrated IPMI / KVM allowing you complete remote control over the system. Our unmanaged products are intended for expert system administrators, or those who have their own system administrators already employed. Unmanaged customers facing KVM or hardware outages will be dealt with on a "best effort" basis during business hours, however immediate response and assistance can be received with the use of a high priority ticket (which will incur a fee of €99). Managed customers hardware is monitored 24/7 and high priority tickets for managed clients are free of charge for dealing with any hardware or website outages.

(6) You may cancel your server by providing us with at least 10 days cancellation notice via a ticket in the support portal. If you fail to provide notice 10 days before the end of your billing period you agree to be billed for 1 more period.

(7) Special offer pricing may be limited to 1 per customer, or new customers only, decided on a per case basis. Special offer/discounted servers may not be used to replace existing services. Cancelling of any server will result in promotion pricing being removed from all servers ordered on special offer/discount, regular pricing for all servers will be applied.

(8) When the Client has sole administration rights the Provider cannot manage the server. The Client therefore has sole responsibility for its content and the security of the server. He is responsible for installing security software, informing himself regularly about security vulnerabilities that become known and for removing such vulnerabilities. If the Provider makes security or maintenance software available this shall not release the Client from his responsibilities in this respect.

(9) The Client undertakes to set-up and manage his server such that security, integrity, network availability, other servers and the software and data of third parties and of the Provider are not put at risk.

(10) Should, as a result of his server security, a Client put at risk the integrity, network availability, other servers and the software and data of third parties and of the Provider or if the Client is under such a suspicion based upon objective circumstances, the Provider shall be entitled to temporarily block the server. This shall apply in particular to so-called denial of service attacks (DoS attacks) that the Client carries out via his server and also in the event that the Client is not responsible for the detrimental act or circumstances, e.g. if the Client’s server is manipulated and used by third parties. A willful act carried out by the Client shall entitle the Provider to terminate the contractual relationship without notice and without first issuing a warning.

(11) Unless otherwise agreed, the Provider shall be under no obligation to back-up client data. If the Client instructs the Provider to provide a data backup service the Client shall, promptly and at regular intervals, check the data backed up by the Provider for completeness and its suitability for data reconstruction. The Client shall immediately inform the Provider of any irregularities discovered.

(12) The Provider shall be entitled to regularly check or audit the Client’s server for compliance with the contractual agreements and provisions, in particular the licensing provisions. In line with this, the Provider is in particular entitled to examine whether the Client has obtained a sufficient number of software licenses. The Client shall be obliged to cooperate during the performance of these audits. This includes providing the Provider necessary information and data in a timely fashion and adequate amount as well installing a perpetual software for this purpose or allowing an installation through the Provider.