Information and revocation in accordance with the Distance Selling Act:
a) Please address any complaints to XICTRON, represented by Lennart Harmes, Glockruthenallee 16, D-31185 Söhlde. The contract is concluded upon acceptance by XICTRON or upon use of the service by the customer and is concluded for the minimum term specified in the contract.
b) End consumers may revoke the contract within two weeks of receipt of the declaration of acceptance by notifying XICTRON, Glockruthenallee 16, D-31185 Söhlde, Germany. The right of withdrawal shall lapse if XICTRON begins to perform the service after the contractually agreed start date or if the end user actively uses the service.
§1 Validity, amendment of the terms and conditions
(1) XICTRON, Glockruthenallee 16, D-31185 Söhlde (hereinafter referred to as the provider) provides its services exclusively on the basis of business relationships, even if they are not expressly agreed again.
(2) Deviations from these terms and conditions are only effective if the Provider confirms them in writing. Any waiver of this written form clause must also be made in writing.
(3) The Provider is entitled to amend or supplement these General Terms and Conditions at any time. The customer has the right to object to such an amendment. If the customer does not object to the amended terms within 6 weeks of receiving notification of the amendment, they shall take effect as announced. The provider shall inform its customers in writing or by email at the beginning of the period that the notification of change shall be deemed accepted if the customer does not object to it within 6 weeks. (4) The provider reserves the right to amend its general terms and conditions for telecommunications services in deviation from paragraph 3 in accordance with the provisions of the German Telecommunications Act (TKG) in conjunction with §§ 305 ff. BGB (German Civil Code).
§2 Performance obligations of the provider
(1) The provider guarantees an average annual availability of its Internet infrastructure of 99%. This does not include times when availability is not possible due to technical or other problems beyond the provider's control (force majeure, fault of third parties, etc.).
(2) Insofar as the provider makes additional services available free of charge, the customer has no claim to their provision. The provider is authorized to discontinue, change, or only offer such services, which were previously provided free of charge, within a period of 24 hours. In this case, the provider shall inform the customer immediately.
(3) Unless expressly agreed with the customer in writing, the provider does not grant the customer free technical support. Support is provided on working days via email and telephone during normal office hours. The provider does not provide direct support for the customer's customers, unless otherwise agreed in writing.
(4) Unless expressly agreed otherwise, the provider may also have the services incumbent upon it performed by expert employees or third parties.
§3 Internet domains
(1) If the customer registers a domain through the provider, the contract is concluded exclusively between the customer and the respective registry; the provider acts only as the customer's representative. The terms and conditions of the respective registry apply.
(2) The above provision shall also apply to the registration fees of other registration authorities, unless the provider indicates otherwise at the time of conclusion of the contract.
(3) The provider has no influence whatsoever on the allocation of domains. It therefore does not guarantee that the domains applied for on behalf of the customer can be allocated (delegated) at all, are free of third-party rights, or will remain valid in the long term. This also applies to the subdomains allocated under the provider's domain. Should the customer be requested by a third party to relinquish an Internet domain because it allegedly infringes third-party rights, the customer shall inform the provider of this immediately. In such a case, the provider is entitled to relinquish the Internet domain on behalf of the customer if the customer does not immediately provide sufficient security for any legal and attorney's fees (at least €7,669.38 in words: seven thousand six hundred and sixty-nine euros and thirty-eight euro cents).
(5) The customer hereby indemnifies the provider against any claims for compensation by third parties based on the unauthorized use of an Internet domain.
§4 Internet presences
(1) The customer may not violate any legal prohibitions, morality, or the rights of third parties (trademarks, name rights, copyrights, data protection rights, etc.) through the Internet presence or banners displayed there. In particular, the customer undertakes not to offer or allow the offering of any pornographic content or services aimed at making a profit that have pornographic and/or erotic content (e.g. nude pictures, peep shows, etc.). The customer may not register their website in search engines if the use of keywords in the registration violates legal prohibitions, morality, or the rights of third parties. For each case of violation of the above obligation, the customer promises to pay a contractual penalty of €5,112.92 (in words: five thousand one hundred and twelve euros and ninety-two euro cents), excluding the assumption of a continuing connection. In the event of a breach of any of the aforementioned obligations, the provider is also entitled to suspend its services with immediate effect.
(2) The provision in § 4 (1) sentence 2 (pornography/eroticism) does not apply to servers that are available for the customer's sole use (dedicated or co-located servers). .
§5 Obligations of the customer
(1) The customer shall create or have created daily backup copies of their Internet presence, which may not be stored on the web server itself, in order to ensure fast and cost-effective restoration of the Internet presence in the event of a system failure.
(2) The customer warrants that the data provided by them is correct and complete. They undertake to inform the provider immediately of any changes to the data provided and, upon request by the provider, to reconfirm the current accuracy of the data within 15 days of receipt. This applies in particular to the customer's name, postal address, email address, telephone number, and fax number.
(3) The customer undertakes to keep passwords received from the provider for the purpose of accessing its services strictly confidential and to inform the provider immediately as soon as he/she becomes aware that unauthorized third parties have knowledge of the password.
(4) The customer undertakes to refrain from using technologies that cause excessive use of the provider's facilities, in particular CGI and PHP scripts, when designing their website. The provider may exclude websites using these technologies from access by third parties until the customer has removed or deactivated the technologies. This does not apply to servers that are available for the customer's sole use (dedicated or co-located servers).
(5) If the data transfer volume (traffic) attributable to the customer's offer reaches or exceeds the maximum amount agreed with the customer for the respective month, the provider shall invoice the customer for the amount attributable to the excess volume in accordance with the current price list.
(6) The customer further undertakes not to use the resources provided by the provider for the following activities:
- unauthorized intrusion into foreign computer systems (hacking);
- Disruption of third-party computer systems by sending/forwarding data streams and/or emails (spam),
- Search for open access to computer systems (port scanning / pentesting);
- Sending emails to third parties for advertising purposes, unless he can assume that the recipient is interested in this (e.g. after a request or previous business relationship);
- falsifying IP addresses, mail and news headers, and spreading viruses.
If the customer violates one or more of the aforementioned obligations, the provider is entitled to immediately suspend all services. Claims for damages are expressly reserved.
§6 Acceptance, retention of title
(1) If neither of the contracting parties demands formal acceptance or if the acceptance date demanded by one party does not occur due to circumstances for which the customer is responsible, the contractual service provided by the provider shall be deemed accepted upon use by the customer.
(2) Until the purchase price has been paid in full, all delivered goods remain the property of the provider. If the customer defaults on payment, the provider may, without prejudice to other rights, take back the delivered goods to secure its rights, provided it has notified the customer of this and set a reasonable grace period.
§7 Commencement and termination of the contract
(1) The contractual relationship between the customer and XICTRON shall commence on the day on which the access ID and the first of the requested domain names are activated for XICTRON. This day shall constitute the commencement of the contract and billing, regardless of the date of payment.
(2) The customer and XICTRON may terminate the contractual relationship without giving reasons with two months' notice before the end of the term. If the contract with XICTRON is not terminated in due time, the term shall be automatically extended for a further year.
(3) Termination must be in writing to be effective.
(4) The right to terminate without notice for good cause remains unaffected. Good cause shall be deemed to exist in particular in the event of serious or repeated breaches of the contractual provisions or if the contract cannot be performed. In the event of termination for good cause, XICTRON is entitled to immediately deny access to XICTRON and to remove the Internet addresses/domains associated with this contractual relationship from the server. This will result in the deletion of the domain. In this case, XICTRON may also immediately block or delete stored content and email messages without setting a grace period.
§8 Prices and payment
(1) Payment of the remuneration shall generally be made in advance. Any deviating payment terms require written confirmation of the change by XICTRON. The customer shall receive a written invoice for each payment transaction.
(2) All contractually agreed remuneration is subject to statutory sales tax.
(3) In the event that the customer fails to meet their payment obligations on time, they shall owe – provided they are a registered trader – additional interest at a rate of 10% per annum from the due date. If the customer is more than 30 days in arrears with their due payments, the provider is entitled to terminate the contract without notice.
(4) If the customer is not a registered trader, they shall owe interest at a rate of 10% per annum in the event of default, unless they can prove that the interest damage is significantly lower.
(5) If the contract is concluded for an indefinite period, the provider is entitled to increase prices at any time. If the price increase is significantly higher than the increase in the general cost of living, the customer has an extraordinary right of termination for the time when the new prices take effect. If the customer does not exercise the right of termination, the contract shall continue under the new conditions.
(6) The provider is entitled to activate a domain only after payment of the fees agreed for registration.
(7) The customer may only offset claims by the provider with undisputed or legally established claims. The same applies to the assertion of a right of retention and the defense pursuant to § 639 (1) BGB and § 478 (1) BGB.
§9 Third-party rights
(1) The customer expressly warrants that the provision and publication of the content of the websites posted by him and/or created for him by the provider according to his information does not violate German law or any laws of his home country that may differ from German law, in particular copyright, data protection, and competition law. The provider reserves the right to exclude pages whose content appears questionable from storage on its server. It shall inform the provider immediately of any deletion of the pages. The same applies if the provider is requested by a third party to change or delete content on its websites because it allegedly infringes third-party rights.
(2) In the event that the customer can provide evidence that there is no risk of infringement of third-party rights, the provider will make the affected websites available to third parties again. The customer hereby indemnifies the provider against any claims for compensation by third parties based on inadmissible content on a customer's website.
§10 Warranty
(1) The provider is entitled to replace technical equipment and/or parts thereof or to make technical changes. Replaced items become the property of the provider.
(2) The customer must inspect rented or delivered goods immediately upon delivery for any defects, quantity discrepancies, or incorrect delivery. Any defective provision or delivery, in whole or in part, must be reported in writing immediately after discovery. Any defects must also be documented in a meaningful manner, in particular by recording any error messages displayed. Before reporting the defect, the customer is obliged to first carry out a problem analysis and troubleshooting in accordance with the operator's manual or other documentation provided by the provider for this purpose. The notification period for defects that were apparent during a careful inspection appropriate to the type of goods is one week at most. Other defects must be reported immediately after their discovery. If the customer is a merchant and fails to report the defect immediately, within the specified period, or in the proper form, the goods shall be deemed to have been approved in view of these defects.
(3) If a properly submitted notification of defects is justified, the provider shall deliver a replacement free of charge. The provider is entitled, at its discretion, to repair defects instead of delivering replacement goods. The provider is obliged to exercise its right of choice no later than 10 days after receipt of the notification of defects by the provider. Otherwise, the right of choice shall pass to the customer. If the repair or replacement delivery fails, the customer shall be entitled, at its discretion, to demand the rescission (cancellation) of the contract or a corresponding reduction in the agreed price (abatement).
(4) The customer must, if necessary, accept a new program/development status within the scope of the warranty, unless this leads to unreasonable adaptation and conversion problems for them.
(5) The customer shall support the provider to the best of their ability in remedying any defects. Before a defect is remedied—in particular before a machine is replaced—the customer shall back up all programs, data, and data carriers in full and, if necessary, remove them.
(6) The provider points out that, given the current state of technology, it is not possible to create hardware and software that works flawlessly in all application combinations or can be protected against manipulation by third parties. The provider does not guarantee that the hardware and software used or provided by the provider will meet the customer's requirements and/or be suitable for specific applications. Furthermore, there is no guarantee that the hardware and software provided is free of crashes, errors, and viruses. The provider only guarantees to the customer that the hardware and software used or provided by the provider will function essentially in accordance with the manufacturer's performance specifications at the time of transfer, under normal operating conditions, and with normal maintenance. The provider does not assume any warranty for known errors on the part of the manufacturer.
§11 Limitation of liability
(1) Regardless of the legal basis, the provider shall only be liable in accordance with the following provisions.
(2) In the event of intent or the absence of a warranted characteristic, the provider shall be liable for all damages attributable thereto in accordance with the statutory provisions. The provider is also liable in accordance with the provisions of the Product Liability Act.
(3) In the event of gross negligence, the provider is liable in accordance with the statutory provisions, but in the case of financial losses, the maximum liability is limited to €12,500.00.
(4) In cases of slight negligence, the provider shall only be liable if it has breached a material contractual obligation. In such cases, the provider shall only be liable for the foreseeable damage typical for this type of contract, but in the case of financial losses, the maximum amount shall be limited to €12,500.00.
(5) Liability for all other damages, in particular consequential damages, indirect damages, or lost profits, is excluded.
(6) Insofar as the provider's liability is excluded or limited, this also applies to the liability of the provider's employees, workers, staff, representatives, and vicarious agents.
§12 Data protection
(1) In accordance with § 33 BDSG (Federal Data Protection Act), the provider points out that personal data (inventory data) and other information relating to the customer's usage behavior (connection data) (e.g., time, number and duration of connections, access passwords, uploads and downloads) are stored by the provider for the duration of the contractual relationship, insofar as this is necessary to fulfill the purpose of the contract, in particular for billing purposes, and may be forwarded to the provider's cooperation partners, vicarious agents, and service providers to the extent necessary. The customer agrees to the storage of this data. The provider also processes and uses the collected inventory data to advise its customers, for advertising, for market research for its own purposes, and to tailor its services to customer needs. The customer may object to such use of their data at any time.
(2) The provider undertakes to provide the customer with complete and free information about the stored data, insofar as it concerns him, at any time upon request. The provider will not forward this data or the content of the customer's private messages to third parties without the customer's consent. This does not apply if the provider is legally obliged to disclose such data to third parties, in particular government agencies, or if internationally recognized technical standards require this and the customer does not object. (3) The provider expressly points out to the customer that data protection for data transmissions in open networks such as the Internet cannot be comprehensively guaranteed according to the current state of technology. The customer is aware that the provider can view the website stored on the web server and, under certain circumstances, other customer data stored there at any time from a technical perspective. Other Internet users may also be technically capable of unauthorized intervention in network security and monitoring of message traffic. The customer is therefore responsible for the security of the data they transmit to the Internet.
§13 Indemnification
The customer undertakes to indemnify the provider internally against all possible claims by third parties based on illegal actions by the customer or errors in the content of the information provided by the customer. This applies in particular to violations of copyright, data protection, and competition law.
§14 Applicable law, place of jurisdiction
(1) The law of the Federal Republic of Germany applies.
(2) If the customer is a registered trader, the courts with local jurisdiction for the provider's registered office shall have exclusive jurisdiction. Otherwise, the provider may also bring legal action against the customer at their place of residence or business.
§16 Final provisions
(1) All declarations by the provider may be sent to the customer electronically. This also applies to invoices within the scope of the contractual relationship.
(2) If another company takes over the activities of the provider and offers the customer a contract that corresponds to a contract concluded with the provider, the provider may terminate the existing contract without notice. (3) Should any provision of this contract be or become invalid, or should the contract contain a loophole that needs to be filled, this shall not affect the validity of the remaining provisions. The invalid provision or gap shall be replaced by a provision that comes close to the economic purpose of the agreement and that would have been agreed by the parties if they had been aware of the invalidity of the provision.