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General Conditions of Sale
1. General Provisions – Scope of Application
1.1 These General Conditions of Sale shall apply to all business relations between the Customer and HUMEKA SYSTEMS GmbH. In each case the actual version of the General Conditions of Sale is applicable, which is valid at the date of conclusion of the respective sales contract,
1.2 Any differing, conflicting or complementary general conditions of the customer shall not become integral part of the sales contract, even if they are known, unless otherwise expressly agreed in writing between us and the customer.
1.3 We supply different IT-Service-Access-Licenses (“Licenses”). The Licenses are awarded to the customer via Internet. They allow the access via servers of different providers.
Each of these organisations engaged for the provision of Licenses may apply different conditions for the registation and administration of the Licenses and the associated Sub-Licenses and for the proceedings in case of disputes concerning the Licenses. As far as Licenses are the subject matter of the contract these corresponding conditions of the organisations engaged shall additionally be applicable.
2. Conclusion of Contact
2.1 Our offers are without obligation and not binding. We reserve the right to make any technical or other modifications as far as they are reasonable.
2.2 By placing his order to us the customer bindingly declares his offer to enter into a contract. We shall confirm the receipt of the order placed by the customer without undue delay. The confirmation of receipt, however, does not yet constitute a binding acceptance by us of the order. But our confirmation of receipt may be combined with our declaration of acceptance of the order.
2.3 We are entitled to accept the offer of the customer to enter into a contract based on the order within a term of 5 working days after our receipt of the order. However, we are also entitled to decline the acceptance of the order, for instance after assessment of the capacity of the customer.
3. Scope of Supply and Services
3.1 The scope of our supply and services is based on our officially published proposals valid at the time of the order, on the particular order sheet and on our actual monthly specials.
3.2 Technical support services are contained in our offers. They will be invoiced separately.
4. Data Security
4.1 As far as data are transferred to us, the customer has to establish security backups beforehand. As far as contained in the special offer, the servers are secured regularly. In the event of an unexpected loss of data the customer is obliged to transfer the corresponding data to us again free of charge.
4.2 The customer is obliged to execute a complete data backup prior to any own or ordered modification.
4.3 The customer will receive an own user identification and pass word for the handling of his offer. He is obliged to treat this as strictly confidential and shall be liable for any misuse resulting from an unauthorized application of the pass word. If the customer becomes aware that the pass word is known to an unauthorized third party, the customer has to inform us about that immediately. If by default of the customer third parties will use any of our services via misuse of a pass word, the customer will be liable to us for user fees and damages. Therefore, in case of a corresponding suspicion the customer will have the option to request a new pass word from us, which we shall forward to him without undue delay.
5. Data Protection
5.1 Our code of practice concerning data protection is in accordance with the German laws, in particular the Bundesdatenschutzgesetz (BDSG) and the Telemediengesetz (TMG).
5.2 Personal data of the customer are only collected and used as far as they are required for the arrangement, the design with regard to contents and any modification of the contractual relationship with the customer.
5.3 The customer is obliged to keep these data up-to-date in his administrative online-domain.
5.4 We shall use the e-mail-address of the customer only for information concerning the orders, invoices and, provided the customer has no objections, for customer care and, if requested, for own newsletters.
5.5 We do not pass any personal data of the customer to third parties. Excepted therefrom are service partners as far as this is necessary for the assessment of the fees and the accounting with respect to the customer.
5.6 The customer is entitled to receive information or to demand correction, barring or cancellation concerning his personal data recorded by us. As far as the cancellation of these data is not admissible due to any statutory or contractual obligation to keep them, these data are barred.
6. Published Contents
6.1 The customer is obliged to mark the contents posted by him on the Internet as his own or external contents and to present his complete name and address.
Further obligations may result from the provisions of the German law as from the Telekommunikationsgesetz and the Telemediengesetz. The customer undertakes to comply with the statutory provisions on his own responsibility.
6.2 The customer undertakes not to publish any contents, which may infringe the right of a third party or otherwise may offend against applicable law. The posting of erotic, pornografic, extremist or immoral contents is not admissible. We are entitled to block the access of the customer in the event of a violation of these provisions. The same is applicable in case the customer will post any contents, which may defame somebody‘s reputation, may insult or libel any persons or groups of persons. This is also applicable in case there does not occur an effective legal claim. We are not obliged to review the contents of our customer.
6.3 The posting of any spam-e-mails is prohibited. This in particular also refers to the posting of inadmissible unsolicited advertising information to third parties. In case of posting of e-mails it is furthermore prohibited to indicate wrong data of the originator or to conceal the identity of the originator in any other way. In case of inobservance we are entitled to block the access.
7.1 We do not assume any liability for direct damages, consequential damages or loss of profit caused by technical problems or disruption within the Internet, which do not lie in our spere of influence.
7.2 We do not assume any liability towards enterprises in case of slightly negligent violation of inessential contractual obligations. This is not applicable in all cases of bodily injury according to the relevant statutory provisions with respect to product liability.
We assume a liability towards enterprises for indirect damages, consequential damages or loss of profit only if they are the result of intentional acts or gross negligence. In such a case our liability is limited to a typically for the contract foreseeable damage, however, limited to 100 % of the contract value.
7.3 If the customer by posting particular contents on the Internet violates his obligations stated in paragraph 6 of these General Conditions, in particular statutory interdictions or moral conventions, he is liable towards us for compensation of all our direct and indirect damages, including financial loss, caused by this violation. Moreover, the customer undertakes to indemnify us from all claims of any kind made by a third party resulting from the illegality of any contents posted on the Internet by the customer. This obligation to indemnify us also incorporates the obligation to completely indemnify us from all cost of legal procedures (in particular court and lawyer fees).
8. Payment Conditions
8.1 The actual prices are valid as published on our web-site.
8.2 According to the specific contractual agreement the payment shall be executed in a lump sum, monthly, quarterly, semiannually or annually. In case of monthly maturity the payment will solely be carried out via a direct debit authorization. In all other cases we issue invoices payable immediately after receipt of invoice by the customer. In these cases the payment can be effected by prepayment via credit card or directly via a PayPal account.
In case the customer exceeds a payment deadline conceded in the invoice, we are entitled to claim interest for delay even without a demand note.
If the customer is a consumer, the rate of interest for delay will amount to 5 percentage points above the base rate. In case the customer is an enterprise, the rate of interest for delay will amount to 8 percentage points above the base rate.
8.4 Moreover we are entitled in case of delay of payment to block the Internet presence of the customer and to retain all other services.
8.5 Cheques are accepted only on account of performance
8.6 Invoices are forwarded as appendix to an e-mail, if requested with qualified signature. In case the customer requires the invoice to be served by post, we are entitled to invoice a reasonable service fee. In case of a retroactive modification of any invoice, which is not caused by our fault, we are entitled to invoice an adequate processing fee.
9. Contract Period / Termination / Place of Performance
9.1 The Licenses are provided at most for the period of 12 months. The extension of a License requires a contractual agreement.
9.2 Prior to its expiration the License may be terminated by either party with effect from each month and with 30 days notice. The statement of reasons for the termination is not required. A termination has to be executed in writing via letter, telefax or a secured online-domain for administration, as far as such instrument is available.
9.3 Moreover, we are entitled to terminate the License for good cause without complying with a term. Such a cause – apart from others – is existent, if the customer during 2 subsequent months is in default concerning a material part of his payment obligations. Such a good cause is also existent, if the customer essentially or in spite of a warning violates his obligations resulting from paragraph 6 of these General Conditions of Sale. A further good cause for blocking or termination is existent, if the customer uses contents, which could impair the regular operating performance or the security of the server.
9.4 Place of performance for all services under the contract shall be Düsseldorf. Place of jurisdiction for all disputes in connection with the contract is Düsseldorf. Furthermore, we are entitled to sue at the place of the registered office of the customer.
9.5 If the customer intends to transfer his contractual rights to a third party, he therefor requires our prior consent in writing. Any transfer of the contractual rights can only be executed in writing via letter, telefax or a secured online-domain for administration, as far as such instrument is available. In case of a transfer via letter or telefax the document has duly and autographicly to be signed by both the previous and the new contractual partners.
10. Regulations for Resellers
10.1 The customer is entitled to grant a third party a contractual right to use the Licenses provided by us. In such case the customer nevertheless remains our sole contractual partner.
He is obliged to transfer all contractual conditions resulting from these General Conditions of Sale and from our order sheets to the third party internally and to bind the third party to comply with these conditions.This is also applicable to the obligations resulting from paragraph 1.3 of these General Conditions of Sale.
10.2 If for modifications of any kind the cooperation of the third party is required, the customer guarantees by internal measures that this cooperation is executed by the third party. The customer upon our request has to inform us about the address data of the third party and the respective contact person. In case of modifications we are entitled to contact the third party directly in order to demand the written consent from the third party regarding the modifications.
10.3 If the third party violates any contractual obligations or if he does not comply with his obligations to cooperate or if there occur any problems concerning the transfer of user rights to third parties, the customer is liable towards us for all damages resulting from this. Moreover, the customer has to indemnify us from any claims in this connection, which the third party or any other person may make towards us.
11. Instruction concerning Revocation
11.1 Right to Revocation
The customer has the right to revoke the contract without statement of reasons within 14 days. The period of time for the revocation corresponds to 14 days from signing the contract. In oder to exercise this right the customer has to inform us, the HUMEKA SYSTEMS GmbH, by means of an explicit declaration concerning his decision to revoke the contract. This declaration has to be presented to us in writing via letter, telefax or a secured online-domain for administration, as far as such instrument is available. In order to comply with the period of time for the revocation it is sufficient that the customer dispatches his declaration prior to the expiration of the relevant period of time.
11.2 Consequences of the Revocation
If the customer has revoked the contract, we have to refund to the customer all payments received from him – with the exception of the cost, which may have occurred, because the customer has chosen supplies or services different from our most favorable standard supplies and services offered. The refunding is due immediately, but at the latest 14 days after we have received the declaration of the customer concerning his revocation. For this refunding we shall use the same instrument of payment, which the customer has originally used for his transaction, unless we have agreed with the customer upon something else. In no event the customer has to bear any charges for the execution of the refunding.
Regulations in case of Providing of Services: If the customer has ordered to start with any services within the period of time for a revocation, the customer in case of a revocation has to pay a reasonable amount as remuneration for these services. This amount reflects the value of our services rendered until we received the declaration of revocation in proportion to the total value of the contractual services.
12. Enquiries and Complaints
Any enquiries or complaints have to be addressed to the company HUMEKA SYSTEMS GmbH, Sonnenacker 61, D-40489 Düsseldorf, Federal Republic of Germany, Managing Director Guillaume Grust, Sonnenacker 61, D-40489 Düsseldorf.