General Terms and Conditions & Annex
table of contents
A. General Terms and Conditions
- scope
- Services of the Provider
- Performance changes
- conclusion of contract
- right of withdrawal
- Customer Obligations
- Moderation and restriction of content
- Remuneration and payment terms
- Contract Duration and Contract Termination
- Change provider
- Liability for defects
- Liability
- Changes to the Terms and Conditions
- Governing Law, Jurisdiction
- Alternative Dispute Resolution
B. Annex: Regulations on switching providers
- scope
- Definitions
- Pre-contractual information
- Change and exit plan
- Initiation of the switching process
- Transition period
- Obligations of the provider during the switching process
- Obligations of the customer
- Restoration and deletion of data
- Remuneration for the switching process and exit fees
- Completion of the switching process
- Termination of contract
A. General Terms and Conditions
1) Scope
1.1 These General Terms and Conditions (hereinafter "GTC") of Felix Netzel, trading as „NetCell-IT“ (hereinafter "Provider"), apply to all contracts that a consumer or entrepreneur (hereinafter „Customer“) concludes with the Provider with regard to the services presented by the Provider on its website. The inclusion of the Customer's own terms and conditions is hereby rejected, unless otherwise agreed.
1.2 A consumer within the meaning of these General Terms and Conditions is any natural person who concludes a legal transaction for purposes that can predominantly neither be attributed to their commercial nor their independent professional activity.
1.3 An entrepreneur within the meaning of these General Terms and Conditions is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his or her commercial or independent professional activity.
1.4 Entrepreneurs within the meaning of these General Terms and Conditions also include authorities or other institutions under public law if they act exclusively under private law when concluding the contract.
2) Provider's services
2.1 The provider provides services to make content accessible via the Internet. To do this, it provides the customer with system resources on a virtual server. The customer can store content on this server up to a certain extent. The exact scope is determined from the provider's service description.
2.2 The content is kept on the server under an Internet domain assigned to the customer for retrieval via the Internet. The provider's services for transmitting data are limited solely to data communication between the transfer point of the provider's own data communication network to the Internet and the server provided for the customer. The provider is not able to influence data traffic outside of its own communication network. Successful forwarding of information from or to the computer requesting the content is therefore not owed in this respect.
2.3 The provider's online service is offered subject to availability. 100 percent availability is technically impossible and therefore cannot be guaranteed to the customer by the provider. However, the provider endeavors to keep the service available as consistently as possible. In particular, maintenance, security or capacity issues as well as events that are beyond the control of the provider (disruptions to public communication networks, power outages, etc.) can lead to disruptions or the temporary shutdown of the service.
2.4 The provider provides the aforementioned services with a total availability of 99 1TP3D.
Availability is calculated on the basis of the time allocated to the respective calendar month during the contract period, minus the maintenance times. The provider will carry out maintenance work during low-usage times as far as possible.
2.5 The contents of the storage space intended for the customer are regularly backed up by the provider. Details on the frequency and procedure of the backup can be found in the provider's service description. The customer is not entitled to the return of any of the backup media, but only to the retransfer of the backed-up content to the server.
2.6 The provider is entitled to adapt the hardware and software used to provide the services to the current state of the art. If such an adaptation results in additional requirements for the content stored by the customer on the server in order to ensure the provision of the provider's services, the provider will inform the customer of these additional requirements in good time. In this case, the customer must inform the provider no later than four weeks before the changeover date whether he will adapt his content to the additional requirements in time for the changeover - that is, no later than three working days before the changeover date. If the customer refuses to adapt his content or does not inform the provider of this within the aforementioned period, the provider can terminate the contractual relationship with effect from the changeover date.
2.7 The provider also undertakes to procure the Internet domain(s) under which the customer's content is to be made available. To do this, the customer must name the Internet domain(s) he or she wishes to use. The provider does not guarantee the availability of the desired domain(s) or that third-party rights (e.g. name, trademark or title rights) will not be infringed by registering the desired domain(s) for the customer. If the desired domain(s) are no longer available, the provider will inform the customer immediately and make up to three alternative suggestions that are as close as possible to the domain originally desired. The customer must then choose one of the alternative suggestions within a reasonable period of time set by the provider. If the customer allows the reasonable period of time set by the provider to pass without success, the provider is entitled to select a domain for the customer. The provider is not responsible for obtaining rights to domains already registered for third parties by the responsible awarding authority. The integration of an external domain that is managed by another provider is not permitted. The provider must register the domain in the name and on behalf of the customer. In particular, when selecting the domain name and the registration office and when negotiating the terms, the provider must independently protect the financial interests of the customer and use its expertise to serve the customer. It must provide information and account to the customer at any time on request regarding the status and progress of its activities in this matter. All rights and naming rights acquired in the domain belong to the customer.
3) Performance changes
3.1 The provider reserves the right to change the services offered or to offer different services, unless this is unreasonable for the customer.
3.2 The provider also reserves the right to change the services offered or to offer different services,
- to the extent that he is obliged to do so due to a change in the legal situation;
- insofar as he thereby complies with a court judgment or an administrative decision directed against him;
- to the extent that the respective change is necessary to close existing security gaps;
- if the change is only beneficial to the customer; or
- if the change is of a purely technical or procedural nature without significant impact on the customer.
3.3 Changes that have only an insignificant impact on the provider's services do not constitute changes to the service within the meaning of this clause. This applies in particular to changes of a purely graphic nature and the mere change in the arrangement of functions.
4) Conclusion of contract
4.1 The services described on the provider's website do not represent binding offers on the part of the provider, but serve to enable the customer to submit a binding offer.
4.2 The customer can submit the offer using the online order form provided on the provider's website. After entering their personal data, the customer submits a legally binding contract offer in relation to the selected services by clicking the button that completes the ordering process.
4.3 The provider can accept the customer’s offer within five days,
- by sending the customer a written order confirmation or an order confirmation in text form (fax or e-mail), whereby the receipt of the order confirmation by the customer is decisive, or
- by asking the customer to pay after placing his order.
If several of the aforementioned alternatives exist, the contract is concluded at the time at which one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the customer and ends on the expiry of the fifth day following the sending of the offer. If the provider does not accept the customer's offer within the aforementioned period, this is deemed to be a rejection of the offer with the consequence that the customer is no longer bound by his declaration of intent.
4.4 If you select a payment method offered by PayPal, payment processing will be carried out via the payment service provider PayPal (Europe) S.à rl et Cie, SCA, 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: “PayPal”), subject to the PayPal Terms of Use, which can be viewed at https://www.paypal.com
4.5 When submitting an offer via the provider's online order form, the contract text is saved by the provider after the contract has been concluded and sent to the customer in text form (e.g. email, fax or letter) after the order has been sent. The provider does not make the contract text accessible beyond this. If the customer has set up a user account for the provider's website before sending their order, the order data is archived on the provider's website and can be accessed free of charge by the customer via their password-protected user account by entering the relevant login data.
4.6 Before submitting a binding order via the provider's online order form, the customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means of better identifying input errors can be the browser's zoom function, which enlarges the display on the screen. The customer can correct his entries as part of the electronic ordering process using the usual keyboard and mouse functions until he clicks the button that completes the ordering process.
4.7 To enter the contract you can use German as your prefered language.
4.8 Order processing and contact are usually carried out via email and automated order processing. The customer must ensure that the email address provided for order processing is correct so that emails sent by the provider can be received at this address. In particular, when using SPAM filters, the customer must ensure that all emails sent by the provider or by third parties commissioned by the provider to process the order can be delivered.
5) Right of Withdrawal
Consumers generally have a right of withdrawal. Further information on the right of withdrawal can be found in the provider's cancellation policy.
6) Customer Obligations
6.1 The content stored by the customer on the storage space allocated to him may be protected by copyright and data protection law. The customer grants the provider the right to make the content stored on the server accessible when requested via the Internet, in particular to copy and transmit it for this purpose and to be able to copy it for the purpose of data backup. The customer is responsible for checking whether the use of personal data by him complies with data protection requirements.
6.2 The customer indemnifies the provider against all claims made by third parties against the provider for violation of their rights due to content stored by the customer on the server. The customer assumes the costs of the necessary legal defense, including all court and attorney fees in a reasonable amount. This does not apply if the customer is not responsible for the violation of rights. In the event of a claim by third parties, the customer is obliged to provide the provider with all information that is necessary for the examination of the claims and for a defense, immediately, truthfully and completely.
6.3 The customer is responsible for making appropriate data backups on a regular basis.
6.4 The customer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art measures (e.g. virus protection programs) for this purpose.
6.5 The customer undertakes not to store any content on the storage space provided that violates applicable law or infringes the rights of third parties. The customer also ensures that programs, scripts, etc. installed by him do not endanger the operation of the server or the provider's communications network or the security and integrity of other data stored on the provider's servers.
6.6 If programs, scripts, etc. installed by the customer endanger or impair the operation of the provider's server or communications network or the security and integrity of other data stored on the provider's servers, the provider can deactivate or uninstall these programs, scripts, etc. If this is necessary to eliminate the risk or impairment, the provider is also entitled to interrupt the connection of the content stored on the server to the Internet. The provider will inform the customer of this measure immediately.
6.7 To access the storage space allocated to the customer, the customer receives a user ID and a changeable password. The customer is obliged to change the password at regular intervals. The customer may only pass on the password to persons who have been authorized by him to access the storage space.
7) Moderation and restriction of content
7.1 The provider is generally not obliged to proactively check the content posted by customers for its legality or compatibility with the rights of third parties or these GTC. Nevertheless, the provider reserves the right to check the legality of customer content on its own initiative in individual cases and to take measures in accordance with the following provisions if infringements are detected.
7.2 Customers and affected third parties can report suspected illegal content to the provider using the contact information in the provider's legal notice (e.g. by email). The provider is free to forward the content of a report to the customer who posted the reported content. The identity of the reporting person will only be disclosed to the customer if this is absolutely necessary.
7.3 In the case of reports and in the context of any checks carried out on the provider's own initiative, a human content check is always carried out. In individual cases, automated technical review procedures may also be used.
7.4 If customers frequently submit obviously unfounded reports or complaints, the provider shall suspend the processing of reports and complaints from these customers for a reasonable period of time after prior warning.
7.5 If the illegality of content published by the customer is established following a report or as part of a review on the provider's own initiative, the provider is entitled to take one or more of the following measures at its reasonable discretion, even without prior notice or contact:
- Warning to the publishing customer,
- temporary blocking or permanent deletion of the content concerned,
- temporary or permanent suspension of the contractually assumed obligations,
- Termination of the contractual relationship (ordinary or extraordinary for good cause).
7.6 When selecting the measures to be taken, the provider shall take into account the principles of proportionality and weigh the interests of the customer concerned against its own interests in the unhindered, uninterrupted and integrity-free continuation of its business activities. The criteria that are taken into account when imposing a measure are
- the meaning and significance of the specific content and its potential for injury or danger,
- the frequency of publication of unauthorized content by the customer,
- the relationship between the publication of inadmissible content by the customer and the customer's other use of services,
- if recognizable, the intentions pursued by the customer with the publication of inadmissible content,
- if recognizable, the existence and degree of fault of the publishing customer.
8) Remuneration and terms of payment
8.1 Unless otherwise stated in the provider's service description, the prices quoted are total prices that include statutory sales tax.
8.2 The payment options and payment terms are communicated to the customer on the provider’s website.
8.3 The remuneration shall be invoiced by the Provider at the agreed intervals and debited from the Customer's bank account by direct debit. For this purpose, the customer shall issue the provider with a direct debit mandate (SEPA) that can be revoked at any time. If the direct debit is not honored due to insufficient funds in the account or due to the provision of incorrect bank details, or if the customer objects to the direct debit although he is not entitled to do so, the customer shall bear the fees incurred by the respective credit institution due to the chargeback if he is responsible for this.
8.4 If you select a payment method offered via the “PayPal” payment service, payment is processed via PayPal, although PayPal can also use the services of third-party payment service providers for this purpose. If the seller also offers payment methods via PayPal for which he makes advance payments to the customer (e.g. purchase on account or payment in installments), he assigns his payment claim to PayPal or to the payment service provider commissioned by PayPal and specifically named to the customer. Before accepting the seller’s declaration of assignment, PayPal or the payment service provider commissioned by PayPal carries out a credit check using the customer data transmitted. The seller reserves the right to refuse the customer the selected payment method if the test result is negative. If the selected payment method is approved, the customer must pay the invoice amount within the agreed payment period or at the agreed payment intervals. In this case, he can only pay PayPal or the payment service provider commissioned by PayPal with a debt-discharging effect. However, even in the event of an assignment of claims, the seller remains responsible for general customer enquiries, e.g. B. regarding the goods, delivery time, shipping, returns, complaints, declarations of revocation and sending or credit notes.
8.5 If advance payment by bank transfer has been agreed, payment is due immediately after conclusion of the contract, unless the parties have agreed on a later due date.
8.6 If you select the credit card payment method via Stripe, the invoice amount is due immediately upon conclusion of the contract. Payment is processed via the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter: "Stripe"). Stripe reserves the right to carry out a credit check and to reject this payment method if the credit check is negative.
8.7 If the SEPA direct debit payment method is selected, the invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not before the expiry of the advance information period. The direct debit is collected when the ordered goods leave the seller's warehouse, but not before the expiry of the advance information period. Advance information ("pre-notification") is any communication (e.g. invoice, policy, contract) from the seller to the customer announcing a debit via SEPA direct debit. If the direct debit is not honored due to insufficient account funds or due to incorrect bank details being provided, or if the customer objects to the debit although they are not entitled to do so, the customer must bear the fees incurred by the respective credit institution for the chargeback if they are responsible for this. The seller reserves the right to carry out a credit check when the SEPA direct debit payment method is selected and to reject this payment method if the credit check is negative.
8.8 If you select SEPA direct debit as your payment method, the invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not before the deadline for advance information has expired. The direct debit is collected when the ordered goods leave the seller's warehouse, but not before the deadline for advance information has expired. Advance information ("pre-notification") is any communication (e.g. invoice, policy, contract) from the seller to the customer announcing a debit via SEPA direct debit. If the direct debit is not honored due to insufficient funds in the account or due to incorrect bank details being provided, or if the customer objects to the debit even though they are not entitled to do so, the customer must bear the fees incurred by the respective credit institution for the chargeback if they are responsible for this.
9) Duration and termination of the contract
9.1 The right to extraordinary termination for good cause remains unaffected. Good cause exists if the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed termination date or until the expiry of a notice period, taking into account all the circumstances of the individual case and balancing the interests of both parties.
9.2 Terminations can be made in writing, in text form (e.g. by email) or in electronic form via the termination mechanism (termination button) provided by the provider on its website.
10) Change provider
If the customer wishes to switch to another provider or to an ICT infrastructure on its own premises, the provisions in the annex on switching providers, which is attached to these GTC, shall apply.
11) Liability for defects
If the customer acts as a consumer, the provisions of statutory liability for defects shall apply.
If the customer acts as an entrepreneur, the provisions of statutory liability for defects shall apply, taking into account the following restrictions.
11.1 The customer must notify the provider immediately of any defects, faults or damage.
11.2 The warranty for only insignificant reductions in the suitability of the service is excluded.
11.3 Strict liability pursuant to Section 536a (1) BGB for defects that already existed when the contract was concluded is excluded.
11.4 The customer may only terminate the contract for failure to grant use in accordance with the contract if the provider has been given sufficient opportunity to rectify the defect and this has failed. Failure to rectify the defect shall only be assumed if it is impossible, if the provider refuses to do so or delays it in an unreasonable manner, if there are reasonable doubts regarding the prospects of success or if it is unreasonable for the customer for other reasons.
12) Liability
12.1 The provider is liable for all contractual, quasi-contractual and legal, including tortious claims for damages and reimbursement of expenses as follows:
12.2 The provider is liable without limitation for any legal reason
- in case of intent or gross negligence,
- in the event of intentional or negligent injury to life, body or health,
- due to a guarantee promise, unless otherwise provided,
- due to mandatory liability such as under the Product Liability Act.
12.3 If the provider negligently breaches a material contractual obligation, liability is limited to the damage that is typical for the contract and foreseeable, unless unlimited liability applies in accordance with the above paragraph. Material contractual obligations are obligations that the contract imposes on the provider in accordance with its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the customer can regularly rely.
12.4 Otherwise, the provider’s liability is excluded.
12.5 The above liability provisions also apply with regard to the provider’s liability for its vicarious agents and legal representatives.
13) Amendment of the GTC
13.1 The provider reserves the right to change these terms and conditions at any time, provided that the customer agrees to the change.
13.2 The provider also reserves the right to change these terms and conditions without the customer’s consent,
- to the extent that he is obliged to do so due to a change in the legal situation;
- insofar as he thereby complies with a court judgment or an administrative decision directed against him;
- to the extent that it introduces additional, entirely new services, services or service elements that require a service description in the General Terms and Conditions, unless the previous usage relationship is adversely affected as a result;
- if the change is only beneficial to the customer; or
- if the change is purely technical or procedural, unless it has a significant impact on the customer.
13.3 The provider will inform the customer about significant changes to these terms and conditions in a timely and appropriate manner. Significant changes are those that would significantly change the contractual relationship to the customer's disadvantage or would amount to the conclusion of a completely new contract. These include, for example, regulations on the type and scope of the service or on the contract term and termination modalities.
13.4 The customer’s right of termination remains unaffected.
14) Applicable law, place of jurisdiction
The law of the Federal Republic of Germany applies to all legal relationships between the parties. For consumers, this choice of law only applies to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his or her habitual residence.
15) Alternative dispute resolution
The provider is not obliged to participate in a dispute resolution procedure before a consumer arbitration board, but is willing to do so.
B. Annex: Regulations on switching providers
1) Scope
The following provisions apply in the event that the customer wishes to switch to another provider or to an ICT infrastructure on their own premises.
2) Definitions
2.1 „Data Processing Service“ for the purposes of these GTC means a digital service provided to the Customer that enables ubiquitous and on-demand network access to a shared pool of configurable, scalable and elastic computing resources of a centralized, distributed or highly distributed nature that can be rapidly provisioned and released with minimal administrative effort or interaction by the Provider.
2.2 „Digital assets“ within the meaning of these GTC are elements in digital form - including applications - for which the customer has a right of use, irrespective of the contractual relationship with the data processing service he wishes to change.
2.3 „ICT infrastructure on own premises“ within the meaning of these GTC means ICT infrastructure and computing resources that are owned by the customer or rented or leased by the customer and that are located in the customer's data center and are operated by the customer or a third party.
2.4 „Switching“ within the meaning of these GTC is a process involving the Provider, the Customer and, if applicable, an acquiring provider of data processing services, in which the Customer switches from using the Provider's data processing service to using another data processing service of the same service type or another service offered by another provider of data processing services or offered to an ICT infrastructure on its own premises, including by extracting, converting and uploading the data.
2.5 „Exportable data“ within the meaning of these GTC means input and output data, including metadata, generated directly or indirectly through the use of the Data Processing Service by the Customer or jointly, with the exception of assets or data of the Provider or third parties that are protected by intellectual property rights or constitute a trade secret.
3) Pre-contractual information
3.1 Before ordering the data processing services, the provider shall provide the customer with clear information on the following points:
- its standard remuneration and, if applicable, penalties for early termination;
- the exchange fees;
- Services that require highly complex or costly switching or where switching is not possible without significant disruption to data, digital assets or service architecture, where relevant;
- specific services to which the conversion and termination obligations do not apply, where applicable;
- a complete list of the categories of data and digital assets that can be transferred, including at least all exportable data;
- a complete list of the categories of data that are specific to the internal functioning of the provider's data processing service and are exempt from the obligation to export data if there is a risk of a breach of the provider's business secrets;
- clear information about known risks to the continuity of the provision of the provider's functions or services.
3.2 The provider's online register with data structures and formats, relevant standards and open interoperability specifications for data is available on the provider's website.
4) Change and exit plan
4.1 The parties agree on a change and exit plan (hereinafter "Plan"), which contains the following in particular:
- Details of switching and exit assistance, including porting methods and formats and the steps required to complete the switching process;
- the contact persons appointed by the customer or the provider to implement the plan;
- an estimate of the time required to export and transfer the data and digital assets from the original provider's environment;
- Restrictions and technical limitations, including those resulting from the storage of data outside the EU;
- a description of the sequence of operations proposed by the provider;
- a description of the test method proposed by the provider, if tests are carried out.
4.2 At the customer's request, the provider must provide the customer's designated personnel (or other third parties authorized by the customer) with information explaining the relevant procedures.
4.3 At the Customer's request, the Provider undertakes to either organize a test or support the Customer in its tests to verify that the plan works in practice for exportable data and digital assets. If problems arise during the test, the parties will analyze the causes in good faith and work towards solutions.
4.4 The provider and the customer undertake to update the plan if necessary and to check whether changes are required, at least at the customer's request.
5) Initiation of the switching process
5.1 The customer must give the provider 2 months' notice of termination and send a notification of change stating that they are initiating the change. If the customer only wishes to transfer certain services, data or digital assets, they must state this in the notification.
5.2 In the notification of change, the customer must state whether he intends to do so:
- switch to another provider of data processing services. In this case, the customer should provide the necessary information about the target provider;
- switch to a local ICT infrastructure of the customer; or
- but only to delete its exportable data and digital assets.
5.3 The provider shall confirm receipt of the switch notification to the customer within 3 working days at the latest using the same communication channel used by the customer.
6) Transition period
6.1 The transition period is 30 calendar days and begins at the end of the notice period for initiating the switching process.
6.2 If the provider is unable to comply with the agreed transition period for technical reasons, it undertakes to do so:
- notify the customer in writing or text form within 14 working days of receipt of the termination;
- specify an alternative transition period, which shall not exceed seven (7) months from the date of the customer's notice of termination; and
- provide an appropriate justification for the technical impossibility.
The customer must confirm receipt of this renewal notification in writing or in text form within 3 working days.
6.3 The customer may extend the transition period once by a period that it deems appropriate for its purposes, but no longer than 3 months. In the case of complex migrations, the parties may mutually agree a longer period, but not exceeding 12 months. The Customer must notify the Provider in writing or in text form of its intention by the end of the original transition period and specify the alternative transition period. The Provider shall confirm receipt of such an extension notification in writing or in text form within 3 working days.
7) Obligations of the provider during the switching process
The provider undertakes to provide the customer and third parties commissioned by the customer with appropriate support from the start and throughout the duration of the switching process so that the customer can switch within the agreed transition period. To this end, the provider must in particular:
- The Provider shall provide the Customer with the necessary skills, appropriate information (including the documents required to carry out the change) and technical support. If problems are identified, the Provider and the Customer shall analyze the causes in good faith and work towards solutions;
- act with due care to maintain business continuity and continue to provide the contractual functions or services;
- maintain a high level of security throughout the switching process, especially for the security of data during its transfer.
8) Obligations of the customer
8.1 The customer undertakes to take all reasonable measures to achieve an effective switch. The customer is responsible for the import and implementation of data and digital assets into its own systems or into the systems of the target provider.
8.2 The customer or third parties commissioned by the customer, including the target provider, undertake to respect the intellectual property rights and business secrets of the materials provided by the provider in the switching process. The Customer further undertakes to grant third parties or the Target Provider access to these materials and, if applicable, to grant sublicenses for their use only to the extent necessary for the execution of the switching process until the end of the agreed transition period, including the alternative transition period, and to respect the confidentiality obligations and the intellectual property rights granted by the Provider.
9) Restoration and deletion of data
9.1 The customer can retrieve or delete their data during the agreed period for data retrieval. The period for data retrieval is 30 calendar days and begins after the expiry of the agreed transition period. The parties may agree a longer period if this is necessary taking into account the interests of both parties.
9.2 Upon expiry of the agreed period for retrieval and upon successful completion of the switching process, the provider undertakes to delete all exportable data and digital assets generated by the customer or directly related to the customer and to confirm to the customer that it has done so. This does not apply to exportable data that the provider must retain under mandatory EU law or the law of EU Member States, provided that the provider informs the customer which exportable data it retains, for how long and for what reasons.
10) Remuneration for the switching process and exit fees
The provider does not charge any additional fees for the switching process.
11) Termination of the switching process
11.1 As soon as the customer informs the provider that the switching process has been successfully completed, the provider shall inform the customer of the termination of the contract without delay. If the customer does not notify the provider of the successful switch or the lack thereof, although the provider has reasonable grounds to assume that the switch has been successfully completed by the customer, the provider may request confirmation from the customer that the switch has been successfully completed. If the customer does not confirm the successful switch within 30 working days of this request, it will be assumed that the switch was not successful and the contract will not be terminated but continued under the existing conditions.
11.2 If the customer does not wish to switch but wishes to delete their exportable data and digital assets, the provider undertakes to inform the customer of the termination of the contract at the end of the agreed notice period.
12) Termination of contract
12.1 The contract shall be deemed terminated between the parties if one of the following events has occurred in full:
- with the successful completion of the switching process;
- at the end of the notice period, if the customer does not wish to switch but wishes to delete their exportable data and digital assets upon termination of the service.
12.2 If the contract or the provider's GTC contains/contains clauses on termination due to legal provisions or related cases, such as the following:
- a contracting party applies for a suspension of payments or a suspension of payments or a contracting party has been declared insolvent;
- a party to the contract has still not complied on time with a material or other obligation under the contract that leads or could lead (either contractually or legally) to the termination of the contract;
- a party has become aware of a change in ownership or power of disposal that leads or could lead to termination of the agreement by contract or by law;
- the agreement is declared null and void due to a breach or amendment of the applicable mandatory law, or;
- similar or identical situations or other situations that contractually or legally lead or could lead to termination of the agreement,
the Agreement together with the agreed services and functions shall not terminate or expire until one of the events set out in the preceding paragraph has clearly occurred. This shall not affect any other rights or remedies that either party may have against the other party.
The customer can agree success criteria for the switch and milestones for the switch with the provider and report the status of their achievement during the switching process. In any case, the customer must inform the provider of the successful switch.
12.3 If the switching process cannot be successfully completed, the parties must work together in good faith to improve the switching process and achieve successful completion, enable timely data transfer and maintain continuity of service. At the customer's request, the provider must support the customer in determining the reasons for the unsuccessful switch and inform the customer how the obstacles identified can be removed or circumvented.
- The customer shall, at its own discretion, engage the target provider on its behalf.
- Without prejudice to any other remedies available under applicable law, the Agreement shall not terminate or expire prior to the successful completion of the switching process or any decision to that effect by a court of competent jurisdiction or forum selected and agreed to by the parties.
- In the event of conflicts or inconsistencies between these clauses and other agreements on the termination of the contract between the parties, these clauses shall take precedence.
12.4 The switching process is considered successfully completed when:
- the agreed notice period has expired,
- the transition period has begun after the notice period has expired,
- the data retrieval period began after the end of the transition period and
- the data deletion was successfully completed after the data retrieval period or after the expiry of an alternatively agreed period following the successful completion of the switching process.
12.5 If, at the end of the transition period, the Customer decides not to delete all of its exportable data and digital assets at the end of the agreed data retrieval period and wishes to ensure that they remain available with limited functionality for a certain additional time, or if the Customer and the Provider have agreed to maintain the contract without the provision of certain services, unless the Customer expressly instructs this, this can only take place after the Customer and the Provider have agreed to maintain the contract without the provision of certain services:
- the agreed notice period has expired,
- the transitional period has expired, and
- an alternative period for data retrieval and other conditions for the service with limited functionality or the maintenance of the contract have been agreed between the customer and the provider (in particular the permission for the provider to delete the data after the alternative period for data retrieval and/or the determination of the remuneration for this additional period).
If the alternative data retrieval period and other terms for the Service are proposed by the Provider during this period, the Contract may not be terminated or expire until the Customer has, at its sole discretion, accepted the deletion and clearly confirmed that the Contract is terminated.
12.6 The right of the contracting parties to terminate the contractual relationship in the case of an open-ended contract by ordinary termination shall remain unaffected, provided that the reason for termination is neither a change of provider nor - on the part of the customer - an intention to delete data.
12.7 If the contract was expressly concluded for a specific duration and the expiration date is reached before the switching process is completed and the customer has not requested the deletion of their exportable data and digital assets,
- the transition period begins on the expiration date of the contract and the provider provides appropriate support for the change;
- the above provisions on the successful or unsuccessful completion of the switching process shall apply accordingly.