Terms and Conditions Hosting

As of: October 2020

ExaMesh – Terms and Conditions Hosting

Preamble

1.1 The Provider is proving hosting resources for its customers in accordance with these general terms and conditions (hereinafter: “Terms and Conditions”). The customer wants to use these resources.

1.2 Terms and conditions of the customer do not become part of the contract, unless their validity has been expressly agreed in writing.

Conclusion of contracts

2.1 If the contract is concluded online, clicking on a button with the description “order and pay” or a description with corresponding meaning constitutes the binding acceptance of the contract of the customer to conclude a contract with the provider in accordance with the provisions of these Terms and Conditions and in accordance with the specifications of the selected service on the website.

2.2 If the contract is concluded for an order form sent in writing or by e-mail, the transmission of the order form is the binding offer of the provider to conclude a contract with the customer in accordance with the provisions of these Terms and Conditions and the service descriptions described in the order form. The customer is entitled, but not obligated, to accept this offer. Acceptance is explained by signature of the customer on the order form and electronic or postal transmission of the signed order form. Alternatively, acceptance can also be made by a confirming email without a signed return of the order form.

Services and obligations of the provider

3.1 The provider provides as a service the provision of the instances appointed by the customer during the agreed term. The customer can choose the region of the server location and the type and performance of the hardware. The provider is not obligated to allow the customer to deploy the instances with a particular hardware, but is free to select the hardware as long as the provided instances meet the region and performance requirements chosen by the customer. The service descriptions on the website, in particular the FAQ contained therein, apply complementary to these Terms and Conditions.

3.2 The provider’s services in the transmission of data are limited to the data communication between the transfer point of the provider’s own data communication network to the Internet and the server provided to the customer. The provider is not able to influence data traffic outside its own communication network. A successful forwarding of information to or from the computer requesting the content is part of provider´s obligations.

3.3 The provider provides the services mentioned above with an availability of 98% on an annual average. In the case of contract terms shorter than a year the availability refers to the respective term. Times of unavailability are not included in the calculation of availability if they take place between 1:00 a.m. CET and 6:00 a.m. CET and do not exceed a total time of 1 hour per day, 3 hours a week, and 6 hours in the calendar month.

3.4 The content on the resource provided is not backed up by the provider in backups and the provider does not create log files for the customer’s use of the resources.

3.5 The provider is entitled to engage subcontractors in the provision of services.

3.6 After the end of the contract, the provider is obliged to completely delete the data remaining stored in the provided instances.

Customer’s obligations

4.1 The customer is solely responsible for backing up his data in backups and is also obliged to do so towards the provider.

4.2 The customer undertakes not to store any illegal content infringing the laws, regulatory requirements or rights of third parties on the resources provided and to comply with all applicable law when using the instances.

4.3 The customer will also take care that the use made by him does not jeopardize the operation of the server and the communication network of the provider.

4.4 The customer shall indemnifies the provider from any claim by third parties, including the costs incurred by the claim, in particular the costs of legaldefense, if the claim by third parties is caused by the customer’s use of the instances.

4.5 In the event of an imminent or occurred breach of the obligation mentioned above and in the event of claims that are not obviously unfounded by third parties against the provider to stop customer´s use of the resources the provider is entitled, taking into account also the legitimate interests of the customer, to temporarily cease the provision of the instances in whole or in part with immediate effect. The supplier will inform the customer without delay.

4.6 The customer receives a user ID and a changeable password to access the resources dedicated to the customer. The customer may only pass on the password to persons who have been authorized by him to access the instances in the interest of the customer. The customer is not entitled to provide access to the instances to third parties for their self-serving use. In particular, the customer is not entitled to transfer access to instances to third parties for a fee.

4.7 If the customer becomes aware that unauthorized third parties are aware of his access data, he must inform the provider immediately. The provider will provide new access data.

Privacy

If the customer processes personal data within this contractual relationship, he is responsible for compliance with data protection regulations. The provider will only process the data transmitted by the customer within the scope of the customer’s instructions. Details of the processor controller relationship will be regulated in a separate agreement. At the customer’s request, the provider will agree to a processor controller agreement in accordance with the model available at https://examesh.de/avv-en.

Remuneration; Billing

6.1 For the provision of the instances the customer has to pay the agreed remuneration.

6.2 The remuneration must be paid in advance for the entire term.

6.3 The provider will create an invoice for the customer and provide it to the customer for retrieval in his customer account and send it by email.

Term

7.1 The contract has the term chosen by the customer on the website or in the order form. At the end of the term, the contract shall be extended for a further term of the same duration if the contract is not terminated before the end of the term.

7.2 The right of both parties to terminate this agreement for good cause remains unaffected by the provisions above.

Withdrawal

If the customer is a consumer, he is entitled to the following right of withdrawal:

Withdrawal instructions

8.1 Withdrawal:
You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the date of conclusion of the contract. In order to exercise your right of withdrawal, you must inform us, ExaMesh GmbH, Reiterweg 2, 86972 Altenstadt, phone: +49 8861 933 65 38, fax: +49 8861 933 65 40, e-mail: [email protected] by means of a clear declaration (e.g. a letter sent by post, fax, e-mail). You can use the attached model withdrawal form, but this is not mandatory. In order to comply with the withdrawal period, it is sufficient that you send the notification of withdrawal before the end of the withdrawal period.

8.2 Consequences of revocation
If you withdraw from this contract, we shall repay to you all payments received from you without immediately and at the latest within fourteen days from the day on which we receive the notification of your withdrawal. For the refund, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise; under no circumstances you will be charged any fees for the repayment.

In the case of the provision of services:
If you have requested that the services start during the withdrawal period, you must pay us a reasonable amount corresponding to the proportion of the services already provided up to the moment you inform us of the withdrawal regarding this contract, compared to the total scope of the services provided in the contract.
End of the withdrawal instructions

Model withdrawal form

If you wish to withdraw from the contract, you can (but do not have to) use the following form and send it to: ExaMesh GmbH, Reiterweg 2, 86972 Altenstadt, phone: +49 8861 933 65 38, fax: +49 8861 933 65 40, e-mail: [email protected]:
I/we () hereby revoke the contract concluded by me/us̈()via
the purchase of the following goods () / the provision of the following service ()
Ordered on () / received on ()
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer) (only in case of communication on paper)
Date
(*) Inaccurate deletion.

Limitation of liability

9.1 Within the scope of this contract, the provider is only liable for damages, (a) which the provider or his legal representatives or vicarious agents have caused intentionally or through gross negligence or which (b) have arisen as a result of injury to life, body or health as a result of a breach of duty by the provider or one of its legal representatives or vicarious agents. The provider is also liable, (c) if the damage has arisen as a result of the breach of an obligation of the provider, the fulfilment of which enables the proper execution of the contract in the first place and on whose compliance the customer regularly trusts and may trust (cardinal obligation).

9.2 In the cases referred to in paragraph 1, letters (a)and (b) the provider is liable within the scope of the statutory liability. In addition, the claim for damages is limited to 100.000 EUR.

9.3 In cases other than those referred to in paragraph 1, the liability of the provider is excluded regardless of the legal basis.

9.4 The liability provisions in the preceding paragraphs also apply to the personal liability of the provider’s organs, employees and vicarious agents.

9.5 Insofar as liability under the Product Liability Act arises from the assumption of a guarantee or due to fraudulent deception, it remains unaffected by the above liability regulations.

Final provisions

10.1 The provider is not willing to participate in a dispute resolution procedure before a consumer arbitration board and is not obliged to do so.

10.2 The assignment of claims is only permitted for the customer with the prior written consent of the provider. Consent must not be unfairly refused. The provisions of Section 354a of the German Commercial Code (HGB) remain unaffected by this.

10.3 These terms and conditions will be sent to the customer by e-mail after conclusion of the contract and will also be stored by the provider.

10.4 Contracts can be concluded with the provider in German and English.

10.5 A right of retention can only be asserted because of counterclaims arising from the same contractual relationship.

10.6 The parties can only offset against claims that are legally established or undisputed.

10.7 Deviating terms and conditions of the customer are not accepted, unless the provider agrees to their validity. All amendments, additions and terminations of contractual agreements must be made in writing, as well as the cancellation of this requirement of a written form. The legal text form satisfies the written form within the meaning of this contract.

10.8 Should individual provisions of the party agreements be or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected. In this case, the parties undertake to replace the invalid provision with an effective provision that is as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.

10.9 The law of the Federal Republic of Germany applies. In the case of a multilingual version of this agreement, the German text alone is decisive for the legal effects. The place of jurisdiction for all disputes arising from this contract is Augsburg, provided that the customer is a merchant, a legal entity under public law, or a special fund under public law. The same applies if the customer does not have a general place of jurisdiction in Germany or if his domicile or habitual residence is not known at the time the action is brought. The provider is also entitled to sue at the customer’s registered office.