General Terms and Conditions of RAIDBOXES GmbH
Online offer contents
REGULATIONS FOR BOTH FREE (DURING THE TRIAL PHASE) AND PAID BOXES
1. SCOPE OF VALIDITY
1.1 RAID BOXES GmbH, Friedrich-Ebert-Straße 7, 48153 Muenster (hereinafter "RAIDBOXES" or "Provider") provides all products and services associated with the product "RAIDBOXES" solely on the basis of the following terms & conditions (hereinafter "Terms & Conditions").
1.2 If the customer is a business enterprise (§ 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB)), the Terms & Conditions laid out here shall also apply to all future transactions between the contracted parties of this agreement.
1.3 Any business conditions of the customer that deviate wholly or in part from these Terms & Conditions shall not be recognized, unless this is agreed in writing by RAIDBOXES (see Section 15.3). These Terms & Conditions apply exclusively if services are provided unconditionally by RAIDBOXES, despite knowledge of any conflicting business terms of the customer.
2. SUBJECT OF THE CONTRACT, FREE SERVICES, AMENDMENTS TO THE CONTRACT
2.1 The subject of this contract is a so-called "RAIDBOXES Account" (hereinafter referred to as such for the customer menu and the entire contract) in which the customer can create and manage one or several “BOXES” (hereinafter referred to as "BOXES", regardless of their number). BOXES are virtual machines that are dedicated to providing the customer with a quick and user-friendly way to create new installations of the open source CMS WordPress. The maximum possible number of BOXES per account is listed in our Description of Services.
2.2. Voluntary, unpaid services and performances by the Provider that are expressly indicated as such and which are not included in the Description of Services may be discontinued at any time. The Provider will take the legitimate interests of the customer into consideration when changing or discontinuing free services and performances.
2.3 In collaboration with third parties, the Provider reserves the right to transfer provision of service to third parties at any time and to any extent. The Provider may also transfer the rights and obligations laid out in this contract to one or several third parties ("Transfer of Contract"). The Provider must inform the customer of the Transfer of Contract at least four weeks before the date of the transfer.
3. CONCLUSION OF THE CONTRACT, TRIAL PHASE, AUTOMATIC TERMINATION OF THE CONTRACT
3.1 The contract is concluded as follows: After entering a name and email address on the RAIDBOXES website, the customer will first receive an email, at the email address he/she has provided, containing the data required to access the dashboard of his/her RAIDBOX accounts. By clicking the button "Order" (a declaration of intent by the customer to enter into the contract), the contract between the customer and RAIDBOXES GmbH is concluded.
3.2 Before conclusion of the contract, the customer has the option to set up and use a free BOX for a trial period, the duration of which can be taken from the provider specifications provided when the contract is concluded. The trial phase begins with the creation of the first BOX in the RAIDBOXES account. Even during the trial phase, the customer has the option to convert the free BOX into a paid BOX, and alongside this set up and use one or more paid BOXES.
3.3 The customer must ensure that the data provided for this mutual contract is correct. In order to convert the free BOX into a paid BOX, or to create a paid additional BOX, the customer must make a corresponding declaration in the dashboard and provide the information required to implement the contractual relationship (name, a fixed postal address - not a mailbox or other anonymous address, email address, phone number and bank account). The customer assures that all the information communicated to the Provider is correct and complete. Upon any changes in his/her personal details, the customer must update the data immediately via the dashboard or by notifying the Provider by mail, fax or email. After the trial period expires, the free BOX will be shut down, unless the customer has converted it into a paid BOX prior to the end of the trial period. If the customer has not converted the free BOX into a paid BOX within one week of the end of the trial phase, the BOX will automatically and irrevocably deleted by the Provider.
3.4 If the customer has neither converted the demo BOX into a paid BOX nor besides this created an additional paid BOX, then the contract will automatically terminate, without any need for action on the part of the customer or the Provider, one week after the end of the trial phase. The customer will be informed before the end of the trial phase about the automatic deletion (BOX and RAIDBOXES accounts). Even after the trial period, the customer will receive, within one week, at appropriate intervals, two communications to this effect at the email address he/she provided. During the period between the end of the trial phase and the deletion, the free (frozen) BOX remains free of charge.
4. RIGHT OF CANCELLATION
4.1 Right of cancellation
The customer has the right to cancel this contract within fourteen days and without indication of reasons.
The period within which notice of the cancellation must be provided is fourteen days from the day of conclusion of the contract.
In order to exercise this right, you must notify us (RAIDBOXES GmbH, Friedrich-Ebert-Straße 7, 48153 Muenster, email@example.com, phone: +49 251 14982000, Fax: +49 251 95209017) by issuing a clear statement (e.g. by mail, fax or e-mail) of your decision to cancel this contract. The enclosed sample cancellation form may be used, but this is by no means mandatory.
In order to meet the cancellation deadline, it is sufficient that the communication concerning the right of cancellation be sent before the end of the cancellation notice period.
4.2 Consequences of cancellation
If the customer withdraws from this contract, the Provider shall reimburse all payments that were received from the customer, including the costs of delivery (with the exception of any additional costs arising because a delivery method was chosen in place of the cheapest standard offered by the provider), at the latest within fourteen days from the date on which the notification was received about the customer’s intention to cancel. For this repayment, the Provider shall use the same method of payment that the customer used in the original transaction, unless this is explicitly agreed otherwise; in no case will the customer be charged fees for this repayment.
4.3 Sample cancellation form
(If you want to cancel the contract, please fill out this form and return it.)
– To: RAIDBOXES GmbH, Friedrich-Ebert-Straße 7, 48153 Muenster, firstname.lastname@example.org, Fax: +49 251 95209017
- I/we (*) hereby give notice that I/we (*) wish to withdraw from my/our (*) contract which was entered into for purchasing/receiving (*) the following products/services (*)
- ordered on (*)/received on (*)
- name of the consumer(s)
- address of the consumer(s)
- signature of the consumer(s) (only for cancellations sent on paper)
(*) delete as appropriate.
5. OBLIGATIONS AND RESPONSIBILITIES OF THE CUSTOMER
5.1 The customer has the option of manually backing up all files and software settings using a backup function. Corresponding backup options are available in the dashboard.
5.2 The customer is responsible for all content. The customer alone is responsible for any content that the customer stores in the BOX or provides for retrieval. As part of the commitment to comply with legal and contractual provisions, the customer is also responsible for the conduct of third parties who act on his/her behalf, especially any vicarious agents or those employed to fulfill the customer’s needs. This also applies to other third parties whom the customer knowingly provides with the necessary access data. The Provider is not able to check the contents of the RAIDBOXES for any possible infringements.
5.3 Safe and secure handling of passwords is the responsibility of the customer. RAIDBOXES expressly points out that incessant attempts are made on the internet to acquire password access via automated attacks. It is the customer's duty to protect its BOXES against such attacks and to select passwords so that they are not at risk from such password cracking attacks.
5.4 It is the customer's responsibility to change his/her passwords periodically. Only those passwords classified as very strong in testing should be selected. The customer undertakes to treat the access password received from the Provider as strictly confidential, and the Provider must be informed immediately as soon as the customer becomes aware that unauthorized third parties have become aware of the password. Likewise, the customer of RAIDBOXES shall be informed immediately if it has reason to believe that third parties are using the server without permission.
6. COMPLIANCE WITH STATUTORY PROVISIONS AND PROHIBITED USE
6.1 The customer is entitled to allow collaborators to use a BOX either in its entirety or in part.
6.2 The customer is obligated to comply with all legal requirements, and for websites in particular to provide all the information that is required by the German Teleservices Act (Teledienstegesetz, TMG). Retrievable content, stored data, embedded banners as well as keywords used for listing by search engines may not violate the law nor the rights of third parties (in particular trademarks, names and copyrights).
6.3 Violations to be considered as particularly serious in the sense of Section 6.2 include
6.3.1 Violations of child protection laws
6.3.2 Significant copyright violations arising from the storage and/or retrieval-ready holding of any content which might include music, pictures, videos, or software etc.
6.3.3 Illegal espionage or manipulation of the Provider's data and/or the data of other customers of the Provider.
6.4 This contract prohibits the customer from
6.4.1 Operating open mail relays or similar systems through which, for example, spam can be disseminated.
6.4.2 Offering or volunteering to offer pornographic content or for-profit services whose object is to provide pornographic and/or erotic content (e.g. nude pictures, peep shows, etc.)
6.4.3 Operating phishing sites
6.4.4 The customer must avoid excessively loading the RAIDBOX server system. Excessive loading can be caused in particular by scripts that are not included within the program library of RAIDBOXES. In the event that the customer content impairs or presently endangers the functionality, security, or accessibility of the server system, RAIDBOXES has the right to delete the customer's account.
6.4.5 It is not permitted to operate a download portal or similar use of server space geared towards the mass distribution of files for download. The installation of software or the excessive playing of video material whose data transfer (traffic) is not measured in a standard manner (www traffic, mail traffic and FTP traffic is typically measured) is also prohibited. In the event of a violation, RAIDBOXES shall be entitled to delete the customer's account.
6.5 The sending of spam emails using software installed on BOXES is not permitted, if such pertains not just to the sending in specific cases of emails to recipients without their permission, and the respective recipient has not provided consent even though this is necessary ("Spam"). The burden of proof of consent (see § 7 para (2) of the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG)) from the recipient is on the customer and not RAIDBOXES. The customer is also prohibited to promote content on BOXES using spam emails dispatched from other providers. The customer is also prohibited from sending so-called "paid mails" or emails promoting a "referral system".
6.6 If the customer is not acting as a consumer, in the event of violations of obligations from Section 6.2 for which the customer is responsible, the Provider may demand payment of a contractual penalty of up to EUR 5,000.00, an amount which is to be determined by the Provider in each specific case and which the customer may present to the court system for review. Each singular act will be deemed an individual infringement; at the very least each and every month shall be considered as an independent violation in cases of ongoing violation. The assertion of further damages shall remain unaffected by the contractual penalty.
6.7 If the customer is at fault for damages that affect RAIDBOXES due to violation of legal regulations, the customer releases RAIDBOXES from liability. If indemnification is not possible, the customer shall owe compensation for the damages. The compensation shall also cover reasonable costs incurred by RAIDBOXES for any necessary legal defense. RAIDBOXES shall inform the customer immediately if claims are made by third parties, and the customer shall be given an opportunity to comment.
7. SERVICE DISRUPTIONS
7.1 The Provider is obliged to eliminate any disruptions within the scope of its technical and operational capabilities. The customer is obliged to inform the Provider immediately about any problems that it becomes aware of ("error reporting"). If the error is not remedied within a reasonable period of time, the customer must notify the Provider of a reasonable grace period. If the error is not remedied during this grace period, pursuant to Section 8, the customer is entitled to compensation for damages it has incurred.
7.2 If the functionality of the BOXES is impaired due to non-conforming content or due to use beyond that which is contractually stipulated, in particular where Section 6 is violated, the customer can assert no right for compensation in respect to this matter. In the event of force majeure, the Provider is exempt from its obligation to provide service.
8. LIABILITY OF THE PROVIDER
8.1 The Provider is fully liable
in cases of intent or gross negligence
in cases of injury to life, body or health
in cases of substantial organizational fault on the part of the Provider
within the scope of any warranty offered by the Provider
8.2 The Provider is also liable for any negligent breach of obligations, the fulfillment of which is absolutely necessary for an orderly realization of the contract and upon whose compliance the customer can regularly rely upon (cardinal obligations).
8.3 Liability under Sections 9.1 and 9.2 also exists if the breach of obligation is the fault of a vicarious agent or legal representative of the Provider.
8.4 If a loss of data occurs at the fault of the Provider, the provider is also liable within the scope of the following limitations of liability only with respect to the costs of restoring the backup and recovery of data which would have been lost even with a standard backup of the data by the customer.
8.5 The limitation of liability under Sections 9.1 through 9.4 also applies to personal liability of the employees, representatives, and organizational units of the Provider.
8.6 Any liability of the Provider under the terms of the German Product Liability Act (Produkthaftungsgesetz) remains unaffected by the above limitations of liability.
8.7 The Provider has no additional liability beyond that specified in Sections 8.1 through 8.6, regardless of the legal reason.
9. ACCOUNT BLOCKING, CRITERIA AND UNBLOCKING, REIMBURSEMENT
9.1 RAIDBOXES has the right to block BOXES without prior notice in the event that objective facts justify suspicion that a BOX has been substantially improperly used by a third party (for example in the event of a hacker attack) or if a violation of Section 7.3 and/or Section 7.4 has occurred. RAIDBOXES is likewise entitled to block an account in the event that any other substantial and obvious (evident) violation of the law or the rights of third parties originates from a BOX, in particular a violation in the sense of Section 6.5.
9.2 For violations of this contract, the law or the rights of third parties that are not substantial and/or not obvious, RAIDBOX will perform a block if the customer does not respond to RAIDBOX within an appropriate comment period or the customer does not provide evidence that the facts used to justify the assumption of a violation are incorrect.
9.3 RAIDBOXES shall inform the customer immediately about any account blocking. The Provider has met its obligation to notify if it has sent the notice by email to the email address given by the customer (Section 4.3).
9.4 If the Provider blocks an account, then it is entitled to suspend all contractual services and benefits. The choice to block an account lies at the discretion of the Provider. The Provider, however, shall take the legitimate concerns of the customer into consideration. The Provider may charge EUR 10.00 plus statutory VAT for each account block as well as to remove the block ("Fee for blocking and unblocking").
9.5 If the blocking is due to a legal or contractual infringement, and the account is not in default, the Provider can make the unblocking conditional upon the customer correcting the illegal condition, and in order to exclude the risk of repeated occurrence, makes a penalty-enforced declaration of discontinuance to the provider, and provides an adequate security deposit to cover this. The amount of the penalty related to this declaration of discontinuance as well as the security deposit to be paid shall be based on the severity of the violation. In order to eliminate a violation it might be necessary for RAIDBOXES to suspend the block temporarily. Usually RAID BOXES will handle this in the following manner: The customer must first provide a written (see Section 15.3) declaration that he/she intends to correct the violation. After this, RAIDBOXES will temporarily suspend the block for the purposes of correcting the violation and inform the customer of this.
10. DATA PROTECTION
11. CANCELLATION, CESSATION OF SERVICE, DELETION OF DATA
11.1 If the customer no longer wants to use a BOX that he/she set up, he/she can delete it. After the agreed contract period of one month, the BOX will be completely deleted from the servers of RAIDBOXES. A separate notice to cancel is not required. RAIDBOXES will not refund the already paid monthly fee.
11.2 The entire contract (RAIDBOXES account) can be canceled by the customer at any time with one month’s advance notice. The customer only needs to delete all the BOXES and then cancel the contract in writing (see Section 15.3), or if this is offered by RAIDBOXES, cancel via an "online cancellation" feature in the dashboard.
11.3 RAIDBOXES may cancel the entire contract (= RAIDBOXES account including all its BOXES) with 14 days of advance notice in writing (see Section 15.3).
11.4 The right of the Provider to cancel extraordinarily without notice for important reasons remains unaffected by Section 13.3. An important reason for the Provider exists in particular if at least one of the following situations apply:
11.5 Despite warning, the customer culpably violates a contractual obligation;
11.6 Despite warning, the customer fails to remedy a contractual or legal violation within a reasonable time; the customer is more than 14 days in arrears and does not pay despite reminders with threat of cancellation, if payment is not made within an appropriate period set by the Provider.
11.7 A warning is not necessary when a violation has occurred which makes a continuation of the contract unreasonable for the Provider. This is particularly the case for a violation as defined under Section 7.5.
12. PLACE OF JURISDICTION, APPLICABLE LAW
12.1 The place of jurisdiction for all claims pertaining to conflicts arising from the contractual relationships between the parties, in particular regarding the coming into existence, handling, or cancellation of the contract, as long as the customer is a proper merchant, legal entity under public law or special fund under public law, is Muenster in Westphalia, Germany. The Provider may also opt to sue in the general jurisdiction of the customer.
12.2 For contracts made by the Provider on the basis of these contract terms and consequent claims of any kind, only the law of the Federal Republic of Germany applies, excluding the provisions of the uniform CISG on the sale of goods.
13. OFFSETS, RETENTIONS, WRITTEN FORM, LEGAL AGE, SEVERABILITY CLAUSE
13.1 The customer may only set-off claims of the Provider if this is undisputed or legally established. The assertion of a right of retention is only available to the customer for counterclaims arising from the contractual relationship with the Provider.
13.2 Upon placement of the order, the customer expressly declares that he/she has reached the age of eighteen years, has full legal capacity and that he/she is predominantly resident in the Federal Republic of Germany. If the customer has not reached the age of eighteen years, he/she shall assure upon placing the order that he/she is authorized to do so. The Provider shall indicate here the potential illegality of any misdeclaration.
13.3 The parties agree that as far as the written form is required in contractual arrangements between the parties, this can be provided by fax, but not by email.
13.4 Should any of the provisions of these Terms & Conditions be or become invalid, this shall not affect the validity of the contract as a whole.
B. TERMS & CONDITIONS FOR PAID BOXES
1. SUBJECT OF THE CONTRACT, AMENDMENTS TO THE CONTRACT
1.1 The Provider shall endeavor to make the server hardware underlying the virtualized servers of the customer accessible via the network maintained by the provider and the Internet to which it is connected.
1.2 Due to the decentralized structure of the Internet, the Provider is only responsible for accessibility insofar that any inaccessibility is due to problems on the part of the network it operates, the web server itself or the provider’s agents. Within the scope of the Provider’s own responsibility, the Provider guarantees uptime of 99.9% on average over the year.
1.3 The Provider reserves the right to expand services and make improvements, as long as this is to serve technical progress, it appears necessary, it is needed to prevent abuse, or the Provider is required to do so due to legal stipulations. Other amendments to the contractual content, including these Terms & Conditions, can be made by the Provider with the consent of the customer, as long as the amendment is reasonable for the customer, taking into account the interests of the Provider. In particular, any amendment to the contract which results in a reduction of the main services provided by the Provider can be considered as unreasonable. If amendment of the contract results in an increase in the fees to be paid by the customer, their permissibility shall be based on the points laid out in Section 3.5. Approval of the amendment to the contract shall be deemed granted if the customer does not object to the amendment within one month of receipt of notice of the amendment. The Provider shall undertake to inform the customer of the consequences of non-objection as a part of this amendment notification.
2. CONTRACT DURATION, CANCELLATION, DELETION OF DATA
2.1 The BOX of a RAIDBOXES account is provided without a minimum contract period, is invoiced monthly and billed at the specified price.
2.2 After 14 days have passed after the notice of contract cancellation has been provided, RAIDBOXES shall delete any BOXES which have not yet been deleted by the customer.
3. PAYMENT, BILLING, DIRECT DEBITING, PRE-NOTIFICATION, PRICE INCREASES, LATE PAYMENT, REFUNDS
3.1 The level of the fees to be paid by the customer to the Provider as well as the corresponding billing period can be found in the Description of Services for the plan chosen by the customer.
3.2 Invoices are issued online by means of placement of the invoice as a downloadable and printable file without a digital signature on the dashboard ("unsigned online invoice"). The Provider reserves the right, as an alternative to unsigned online invoicing, to send the invoice by post or to place a digitally signed invoice (§ 14 para (3) of the German VAT Law (Umsatzsteuergesetz, UStG)) on the dashboard. A right of the customer to demand a digitally signed online invoice (§ 14 para (3) German VAT Law (UStG)) or a mailed invoice, however, only exists if the customer is entitled to deduct VAT from his/her expenses. If the customer wishes for an invoice to be sent by post, he/she must request this and pay the agreed fee (currently EUR 1.45 including statutory VAT). An online invoice will be considered to have been received once it is available to the customer in the dashboard and as such at the customer’s disposal. This also applies if the Provider also sends the invoice to the customer via email.
3.3 The customer authorizes the Provider to collect the payments to debited from the customer's specified bank account. The customer must ensure that sufficient funds are available in the account. If the customer is responsible for a failed bank transfer, for each failed transfer the customer is obliged to pay a fee of €6.00 in order to reimburse the Provider for expenses including bank fees, unless the customer proves that the damages were not even incurred or significantly lower than this amount. If the damages exceed this fee, the Provider reserves the right to seek the actual damages.
3.4 The customer hereby declares his/her understanding that prenotification (payment notice for accounting purposes) as part of the first and recurring SEPA debits is made 7 days prior to the first debit and the following debits.
3.5 If the customer is in arrears for a period of at least 14 days, by a value at least equivalent to the last owed monthly fee, the Provider shall be entitled to withdraw its services after at least one warning containing a threat to block the account. Usually this is done by blocking the account (Section A 10.4).
3.6 The Provider is entitled to increase fees appropriately. An annual increase of at most 5% is certainly considered to be appropriate. The fee increase requires the consent of the customer. Consent is considered to have been granted if the customer does not object to the change within one month of notice of the change. The Provider shall undertake to inform the customer of the consequences of non-objection as a part of this change notice.
C. SPECIAL CONDITIONS FOR FREE BOXES (DURING THE TRIAL PHASE)
1. DEVIATING PROVISIONS
The provisions contained in paragraph B do not apply to free BOXES during the trial phase.
2. INCLUDED SERVICES
2.1 The customer is not entitled to claim the entire range of functions available in the regular product for free BOXES during the trial phase.
2.2 The Provider reserves the right to amend the services provided with the free BOXES option, also for the ongoing trial phase, and also to reduce these services, insofar as this is reasonable for the customer while taking into account the interests of the Provider.
3. DELETION OF DATA
If the customer has neither converted the demo BOX into a paid BOX nor created a paid additional BOX, the contract shall then automatically terminate without any action on the part of the customer or the Provider one week after the end of the trial phase. At this point in time, the RAIDBOXES account shall then be completely deleted by the Provider (see Section A 4.4). In the case of an extraordinary termination without notice by the Provider (Section A 13.4), the RAIDBOXES account shall be completely deleted by the provider one week after the termination takes effect.
D. SPECIAL CONDITIONS FOR THE "FULLY MANAGED” PLAN
In the “Fully Managed” plan we offer plugin (WordPress supporting software) and theme (WordPress design templates) updates for the content management system WordPress.
1. PROCEDURE FOR THE UPDATE OF PLUGINS AND THEMES
Before the update, a manual backup is created. After the update process, the whole website is checked for integrity as best as is reasonably possible. A complete inspection of the website cannot be guaranteed. Due to the numerous updates that are carried out for the various plugins, the customer is not informed when these are carried out. The customer is therefore advised to check his/her website at least once a week.
2. PROCEDURE IN THE EVENT OF PROBLEMS
If the customer finds problems on his/her website, the website can be restored using the manual backup at any time. If an error on the website due to a plugin or theme update is be detected by the Provider, the manual backup will be reset and the customer will be notified. It can then be agreed mutually whether an update should be temporarily suspended or whether an additional, paid support service should be called upon.
The Provider is not liable for damages caused by plugin or theme updates.
The plan only includes a commitment to carry out the update process and to carry out a limited integrity check. The customer has no right to demand that problems with plugins and theme updates be corrected by the Provider. In certain cases the Provider may resolve issues on a goodwill basis. In order to resolve issues, however, it is often necessary for technicians to invest several hours of their time. The customer has the option of separately commissioning the Provider to resolve issues at a net rate of €80 per hour.
MÜNSTER, OCTOBER 2015