General Terms and Conditions

Note: This English version is provided for convenience only. Only the German version is legally binding.

§1 Scope

(1) meerfarbig GmbH & Co. KG, Kruppstraße 105, 60388 Frankfurt am Main (hereinafter the “Provider”) provides its services exclusively on the basis of these General Terms and Conditions.

(2) We do not recognize any terms and conditions of the customer that deviate from these terms unless we have expressly agreed to them in writing. Our General Terms and Conditions also apply if we provide our services without reservation despite being aware of conflicting or deviating terms of the customer.

§2 Obligations of the Provider

(1) The Provider’s obligations result from the service description of the respective product.

(2) The Provider is entitled to extend its services, adapt them to technical progress and/or make improvements. This applies in particular if the adaptation appears necessary to prevent misuse or if the Provider is obliged by law to adapt the services.

(3) If the Provider makes additional services available without additional charge, the customer has no claim to their provision. The Provider is entitled to discontinue or change such previously free services within a reasonable period, or to offer them only for a fee. In such a case, the Provider will inform the customer in good time.

(4) The Provider is obliged to provide technical support to the customer only to the extent contractually agreed. Beyond that, the Provider does not grant the customer any free support services. The Provider does not provide direct support to the customer’s own customers unless otherwise agreed in writing.

(5) Where fixed IP addresses are made available to the customer, the Provider reserves the right to change the IP address(es) assigned to the customer if this becomes necessary for technical or legal reasons.

§3 Obligations of the Customer

(1) The customer warrants that the information provided by them is correct and complete. They undertake to inform the Provider without delay of any changes to the contact details provided and to any other data required for performing the contract.

(2) The customer will create (or have created) up-to-date daily backup copies of all data they transfer to the Provider’s servers. These must not be stored on the server itself, in order to ensure quick and inexpensive recovery of the data in the event of a system failure. In the event of data loss, the customer will upload the relevant data again to the Provider’s servers free of charge and restore configurations.

(3) The customer’s internet presence and any banners displayed there must not violate statutory prohibitions, public morals or the rights of third parties (copyright, trademark, name and data protection rights, etc.). The customer must not register their internet presence in search engines if and to the extent that the use of keywords and similar techniques in the registration violates statutory prohibitions, public morals or the rights of third parties. In the event of a breach of any of the aforementioned obligations, the Provider is entitled to discontinue its services with immediate effect or to block access to the customer’s information.

(4) The customer undertakes to change passwords received from the Provider for the purpose of accessing its services regularly and to keep them strictly secret. The customer will inform the Provider without delay as soon as they become aware that unauthorized third parties know the password.

(5) When designing their internet presence, the customer undertakes to refrain from techniques that cause excessive use of the Provider’s facilities. The Provider may exclude internet presences using such techniques from third-party access until the customer has removed or deactivated the techniques. This does not apply to servers that are available to the customer for exclusive use (dedicated hardware).

(6) The customer further undertakes not to use the resources provided by the Provider for acts that violate statutory prohibitions, public morals or the rights of third parties. This includes in particular the following acts:

• (a) unauthorized intrusion into third-party computer systems (e.g. hacking);
• (b) interference with third-party computer systems by sending/forwarding data streams and/or e-mails (e.g. DoS/DDoS attacks, spam, mail bombing);
• (c) searching for open access to computer systems (e.g. port scanning);
• (d) sending e-mails to third parties for advertising purposes unless the recipient has given express consent or another legal permission applies;
• (e) forging IP addresses, mail and news headers, and distributing malware.

If the customer violates one or more of the aforementioned obligations, the Provider is entitled to discontinue all services immediately. Claims for damages are expressly reserved.

(7) If a certain data volume per billing period has been agreed with the customer, the customer will monitor this limit. If the data transfer volume (traffic) attributable to the customer’s offering exceeds the maximum volume agreed with the customer for the respective period, the Provider will invoice the customer for the excess volume at the prices agreed for this purpose.

§4 Conclusion of Contract, Term, Termination

(1) The contract is concluded when the Provider accepts the customer’s contractual offer. Acceptance is either declared expressly or is deemed to occur when the Provider begins performing the service.

(2) Unless otherwise agreed, the minimum contract term is 1 month and the notice period for ordinary termination is 14 days to the end of the contract term. Unless otherwise agreed, the contract is extended by the respective minimum contract term if it is not terminated. If this term is longer than one year, it is extended by one year at a time.

(3) The right of both parties to extraordinary termination for good cause remains unaffected. Good cause exists for the Provider in particular if the customer

• (a) is in default with the payment of fees in an amount equal to two monthly basic fees;
• (b) culpably breaches an essential contractual obligation and fails to remedy this within a reasonable period despite a warning.

(4) Any termination must be in writing to be effective; transmission by fax is sufficient to meet this requirement. The written form is also met by an e-mail that satisfies the electronic form of § 126a BGB (German Civil Code) (so-called qualified electronic signature).

§5 Prices and Payment

(1) Usage-independent fees are due and payable in advance for the respective contract term, unless a different billing period has been agreed with the customer. Usage-based fees are due and payable at the end of the respective billing period. All fees are based on the prices agreed with the customer for this purpose.

(2) The customer is in default even without a reminder if they do not pay within 14 days of receiving an invoice.

(3) Unless otherwise agreed, the customer pays by direct debit. The customer authorizes the Provider to collect all fees arising in the course of the contractual relationship. The authorization also applies to new bank details communicated by the customer. The customer must ensure that their account has sufficient funds during the agreed debit period. The customer is obliged to compensate the Provider for any damage resulting from a refusal of payment by the account-holding bank.

(4) In the event of late payment, the Provider is entitled to charge interest of 10% per year. The customer is permitted to prove that no or substantially lower interest damage has occurred.

(5) The Provider provides an electronic invoice in each case. The customer hereby agrees to this. If the customer requests an invoice by post, the Provider may charge a reasonable fee per invoice.

(6) The temporary suspension of services does not affect the customer’s payment obligation.

(7) The customer may only set off claims against the Provider with counterclaims that are undisputed or have been finally determined by a court.

§6 Warranty

(1) The customer must notify the Provider of defects without delay and support the Provider to the best of their ability in remedying any defects, in particular by taking all reasonable data security measures.

(2) The Provider points out that, given the current state of the art, it is not possible to create hardware and software that operates without errors in all combinations of use or that can be protected against any manipulation by third parties. The Provider does not guarantee that hardware and software used or provided by the Provider meets the customer’s requirements, is suitable for specific applications, or is free of crashes, errors and malware. The Provider only warrants to the customer that hardware and software used or provided by the Provider functions essentially in accordance with the manufacturer’s specification at the time of provision, under normal operating conditions and with normal maintenance.

§7 Liability

(1) The Provider is liable, regardless of the legal ground, only in accordance with the following provisions.

(2) The Provider is liable for intent and gross negligence in accordance with the statutory provisions.

(3) In cases of slight negligence, the Provider is liable only for the breach of an essential contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on whose observance the customer may regularly rely (cardinal obligation). In these cases, the Provider is liable only up to the amount of the foreseeable damage typical for this type of contract.

(4) In cases of slight negligence, liability for all other damages, in particular consequential damages, indirect damages or lost profits, is excluded.

(5) The above limitations do not apply to injury to life, body or health, nor to liability under the Product Liability Act.

(6) To the extent that the Provider’s liability is excluded or limited, this also applies to the liability of the Provider’s employees, other staff, representatives and vicarious agents.

(7) Within the scope of the Telecommunications Act (TKG), the liability provision of § 44a TKG remains unaffected in all cases.

§8 Data Protection

The Provider collects, processes and uses the customer’s personal data within the framework of statutory data protection provisions. Additional information can be found in our Privacy Policy.

§9 Copyright, License Agreements

(1) The Provider grants the customer a non-exclusive (simple) right to use the Provider’s own and third-party software made available, limited in time to the term of the contract. Transfer, except with the Provider’s consent by way of assumption of the contract, and the granting of sublicenses to third parties are not permitted. Further use after termination of the contract is not permitted; the customer will delete copies of software provided after termination of the contract.

(2) Different provisions apply to open source programs. In this case the respective license terms apply.

(3) Otherwise, the license terms of the respective software manufacturers apply and, where relevant, the Provider’s manufacturer- or software-specific additional terms.

§10 Indemnification

The customer undertakes to indemnify the Provider internally against all claims by third parties that are based on unlawful or infringing acts of the customer or on content errors in the information provided by the customer. This applies in particular to infringements of copyright, trademark, name, data protection and competition law.

§11 Governing Law, Jurisdiction

(1) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) If the customer is a merchant, a legal entity under public law or a special fund under public law, Frankfurt am Main is the exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship. The Provider is also entitled to sue the customer at their general place of jurisdiction.

§12 Miscellaneous

(1) All information and declarations of the Provider, with the exception of declarations of termination, may be sent to the customer electronically, in particular by e-mail to the e-mail address provided by the customer. For the Provider’s declarations of termination, however, the restriction of § 4 (4) applies.

(2) Should a provision of the contract be or become invalid, or should the contract contain a gap requiring completion, this does not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a valid one that comes closest to the economic purpose of the invalid provision. The same applies in the event of a gap in the contract.

Special Terms

§13 Special Terms for Dedicated and Virtual Servers

(1) The customer is prohibited from providing the following services:

• Internet Relay Chat (IRC) services
• Anonymization services
• P2P file-sharing networks

(2) If the customer alone has administrator rights, the Provider cannot manage the server. The customer is therefore solely responsible for its content and the security of the server. It is their responsibility to install security software, to regularly inform themselves about known security vulnerabilities and to close known vulnerabilities. If the Provider makes security or maintenance programs available, this does not release the customer from this obligation.

(3) The customer is obliged to set up and manage their servers in such a way that the security, integrity and availability of networks, other servers, and software and data of third parties or of the Provider are not endangered.

(4) If a customer endangers the security, integrity or availability of networks, other servers, and software and data of third parties or of the Provider by means of their servers, or if the customer is suspected of this on the basis of objective circumstances, the Provider is entitled to temporarily block the server. This applies in particular to so-called denial-of-service attacks (DoS attacks) carried out by the customer via their server, and also where the customer is not responsible for the harmful act or condition, e.g. if the customer’s server has been manipulated and is used by third parties. Intentional conduct by the customer entitles the Provider to terminate the contractual relationship without notice and without prior warning.

(5) If spam e-mails are sent via the server, the Provider may likewise temporarily block the server.

(6) Unless otherwise agreed, the Provider is not obliged to back up customer data. If the customer commissions the Provider to perform data backups, the customer must check the data backed up by the Provider for completeness and suitability for data reconstruction promptly and at regular intervals. The customer must notify the Provider of any irregularities without delay.