§1 Scope and order of precedence
(1) These special terms apply to contracts between XICTRON, owner Lennart Harmes, Glockruthenallee 16, 31185 Söhlde, Germany (XICTRON), and the customer for the website and shop packages that XICTRON offers as a subscription or a one-off purchase on the page “Website and shop subscription” of xictron.com and on xicweb.de, guenstige-website-erstellen.de and internetagentur-hildesheim.de (packages). A package can be agreed as a monthly subscription (subscription) or as a one-off purchase.
(2) The packages are intended for businesses within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, special funds under public law, and associations and foundations. A person who enters into the contract in the course of starting a commercial or self-employed professional activity is also a business. XICTRON does not enter into contracts for the packages with consumers within the meaning of Section 13 BGB.
(3) The following apply to a package, in this order:
- XICTRON’s offer accepted by the customer, including the service description of the package,
- these special terms,
- for hosting and domains, the Terms for Hosting,
- otherwise the Terms and Conditions (general terms).
(4) A rule of a lower-ranking part applies only insofar as a higher-ranking part does not provide otherwise.
(5) In particular, the following rules do not apply to the packages because these terms govern them differently:
- from the general terms: Section 5 (9) (unilateral change of services), Section 6 (2) sentence 3 (change of rates) for the monthly fee and the hourly rate, Section 8 (1), (2) and (4) sentence 3 (term, renewal, written form), Section 9 for the subscription (warranty), Section 10 (3) sentences 1, 3, 5 and 6 and (4) (use only while payments are made, lapse of rights, suspension), Section 12 (liability), Section 15 (6) sentence 1 for the accepted offer and Section 16 (3) (place of jurisdiction);
- from the Terms for Hosting: Section 1 (2) sentence 2 and (3) (written form, change by silence), Section 3 (4) (surrender of the domain), Section 5 (4) and (5) (excessive use of facilities, data traffic), Section 7 (1) to (3) and (6) sentence 3 (start of contract, term, renewal, written form), Section 8 (3) to (5) and (7) sentence 2 (interest, price increase, retention), Section 10 (2) to (6) (warranty), Section 11 (liability), Section 12 (3) sentence 4 (data security) and Section 16 (2) (transfer of the contract).
§2 Offer and conclusion of contract
(1) The prices on the website describe the packages. A contract is only concluded on the basis of an offer from XICTRON in text form. The offer states the package and its scope, the purchase model, for the subscription the minimum term, the notice period, a setup fee, if agreed, the monthly fee and the change allowance, as well as the one-off price of the package and the hourly rate for additional work.
(2) The offer is binding for the period stated in it. The contract is concluded when the customer accepts it in text form.
§3 Services in the subscription
(1) In the subscription, XICTRON builds the website or shop according to the service description, provides it to the customer for use for the duration of the contract and operates it. The focus of the contract is on providing the website for use.
(2) The monthly fee covers:
- hosting on servers in data centers in Germany with an SSL certificate and its renewal,
- backups under Section 7 (1),
- system and security updates under Section 7 (2),
- ongoing monitoring of availability, certificate and loading time, with a short monthly report insofar as the service description provides for it,
- the change allowance under Section 6,
- the remedy of defects and faults under Section 8.
(3) XICTRON owes the technical implementation of accessibility and data protection, such as contrast, keyboard operation, labels, consent prompts and encryption, as set out in the service description. XICTRON does not owe a legal review of the customer’s content and legal texts.
(4) Unless the service description provides otherwise, the monthly fee does not include creating texts and images, domain fees, licenses for paid add-on modules, fees of payment and shipping providers, ongoing search engine optimization, advertising budget and changes beyond the allowance. XICTRON states paid add-on modules before booking; the customer decides.
§4 Provision, go-live, term and termination of the subscription
(1) After the contract is concluded, XICTRON builds the website and provides it for review on a protected test address.
(2) Go-live is the publication under the customer’s domain after the customer’s approval. If XICTRON provides the website complete for approval, apart from content the customer has to supply, and the customer does not approve it within four weeks without naming defects during that time, the day after the period ends counts as go-live. XICTRON points out this period and its consequence in text form when providing the website.
(3) The minimum term is 12 or 24 months from go-live, as agreed in the offer. It ends at the end of the calendar month in which this period expires.
(4) Either party may terminate the subscription with one month’s notice to the end of a month, at the earliest to the end of the minimum term. If it is not terminated, it continues for an indefinite period after the minimum term. It is not renewed for a further minimum term. The customer does not owe a buyback.
(5) Notice of termination must be given in text form; an email is sufficient.
(6) The right to terminate for good cause remains unaffected. Good cause for XICTRON exists in particular if the customer is in default with an amount equal to two monthly fees and does not pay within 14 days of a reminder in text form that refers to termination.
§5 Fees and payment
(1) A setup fee, if agreed, is due when the contract is concluded. The monthly fee is charged from go-live, pro rata for the month of go-live and monthly in advance thereafter. XICTRON charges additional work under Section 6 (3) with the following monthly invoice.
(2) All prices are net plus statutory VAT.
(3) The monthly fee and the hourly rate do not change during the minimum term. After that, XICTRON may offer a change in text form at least six weeks before it is to take effect. It only takes effect if the customer agrees. If the customer does not agree, the previous prices continue to apply; either party may then terminate the subscription under Section 4 (4).
(4) The statutory provisions apply to late payment. If the customer is more than 30 days in default with at least one monthly fee, XICTRON may, after notice in text form with a period of 14 days, defer changes from the allowance and temporarily suspend the website until payment. The customer’s content and data are neither deleted nor withheld; the export under Section 12 remains possible.
§6 Change allowance
(1) The subscription includes a monthly change allowance of the scope stated in the service description of the package. It covers changes to texts, images, prices, opening hours and contact persons as well as new subpages within the page scope of the package, and in packages with further development also extensions of functions. Updates, security patches, remedying defects under Section 8 and the export under Section 12 are not counted against the allowance.
(2) The customer orders changes in text form. XICTRON records the time in started quarter hours.
(3) If a change would exceed the remaining allowance, XICTRON informs the customer in advance with an estimate of the effort. The customer then decides whether XICTRON charges the additional work at the hourly rate from the offer, whether it is moved to the following month or whether the customer switches to a larger package. Without the customer’s decision, XICTRON does not carry out the additional work.
(4) Unused allowance expires at the end of the month. It is neither paid out nor credited against other services.
(5) Changes within the allowance are not a change request under Section 5 (2) to (8) of the general terms.
(6) The customer may switch to a larger package at any time with effect from the first day of a month. If this requires additional build work, such as further pages, XICTRON states it in advance in text form with a price. The switch does not extend the minimum term. The customer may switch to a smaller package at the earliest at the end of the minimum term, and thereafter with one month’s notice to the end of a month.
§7 Operation, backups and updates
(1) XICTRON backs up the website’s files and databases daily to storage separate from the web server. Daily backups are kept for at least seven days, one backup per week for at least four weeks and one backup per month for at least six months. On request, XICTRON restores a backed-up state at no additional cost. The customer does not owe backups of their own.
(2) XICTRON installs security updates promptly after their release and version updates in maintenance windows, and then checks that the website works.
(3) Section 2 (1) of the Terms for Hosting applies to availability.
(4) Storage space and data traffic are included in the monthly fee. Limits apply only insofar as the service description quantifies them.
(5) XICTRON may change servers, data centers and software used if the location in Germany and the scope of backups and functions are maintained. If the customer has to do something for this, such as changing a DNS record, XICTRON announces the change in good time beforehand.
§8 Defects and faults in the subscription
(1) During the term of the contract, XICTRON maintains the website in the condition provided for in the service description. XICTRON remedies defects and faults for which the customer is not responsible as part of the monthly fee.
(2) The customer reports faults by email or telephone with a short description. Response times apply insofar as the service description states them. They run from receipt of the report and only within service hours, on working days from Monday to Friday, 9 a.m. to 6 p.m.
(3) XICTRON remedies faults caused by the customer’s changes in the content management system or by content and services the customer integrates without XICTRON, on request, within the allowance or based on effort.
(4) Otherwise, the statutory provisions on providing items for use apply. Strict liability for defects that already exist when the contract is concluded (Section 536a (1) first alternative BGB) is excluded; liability under Section 9 remains unaffected.
§9 Liability
(1) XICTRON is liable without limitation for intent and gross negligence, for damage resulting from injury to life, body or health, under the Product Liability Act and insofar as XICTRON has given a guarantee.
(2) In the case of slight negligence, XICTRON is only liable for breach of material contractual obligations, meaning obligations whose fulfillment makes the proper performance of the contract possible in the first place and on whose compliance the customer may regularly rely. Liability is then limited to the foreseeable damage typical for the contract at the time it was concluded.
(3) These rules also apply to the loss of data and in favor of XICTRON’s vicarious agents. For the packages, they replace Section 12 of the general terms and Section 11 of the Terms for Hosting.
§10 Rights to the implementation, content, data and domain
(1) The customer’s content and data, in particular their texts and images as well as customer, order and form data, and their domain belong to the customer at all times. XICTRON uses them only to perform the contract.
(2) In the subscription, the customer receives a simple, non-transferable right to use the implementation, meaning design, programming, templates and configuration (the build), for their website or shop for the duration of the contract. The right ends with the contract unless the customer buys out the subscription under Section 11.
(3) The customer may use content that XICTRON creates for the customer under a separate order, such as texts or images, without limitation in time or territory after payment, including after the subscription ends. Third-party content, such as licensed images or fonts, is subject to its license terms.
(4) With the one-off purchase upon acceptance, and after a buyout upon payment, the customer receives a right to the implementation created for them that is unlimited in time and territory and transferable, to use it, edit it and have third parties operate and edit it. XICTRON hands over all files and access data as well as source files and documentation insofar as the service description names them. The right is not exclusive insofar as the implementation contains general components, templates and tools that XICTRON also uses for others. Open-source and other third-party components are subject to their licenses.
(5) The domain is registered to the customer. If the customer has it registered through XICTRON, the customer is entered as the holder; XICTRON does not give up the domain without the customer’s consent and hands over the transfer code within five working days of a request.
(6) The customer’s rights under paragraphs 1, 3 and 4 do not lapse because of late payment; Section 5 (4) applies to default. The rights under paragraph 4 do not arise before the fee has been paid in full.
(7) The customer may refuse at any time in text form a reference to XICTRON on the website (name, logo or link under Section 15 (5) of the general terms) and being named as a reference (Section 15 (4) of the general terms); XICTRON then removes the reference without counting it against the allowance.
§11 Buyout: switching from the subscription to a purchase
(1) The customer may buy out the subscription at any time, meaning buy the website or shop. The price is the one-off price of the package booked at that time according to the offer, less any setup fee paid. Monthly fees already paid are not credited. XICTRON does not charge again for add-on services that were ordered and paid separately.
(2) The subscription ends when payment is received. No monthly fees are due for any remaining minimum term. The customer receives the rights and documents under Section 10 (4).
(3) On request, the parties agree hosting and support after the buyout in a separate contract.
§12 End of contract: export, handover and deletion
(1) When the subscription ends, for whatever reason, XICTRON exports the customer’s content and data in common formats and hands them over at no additional cost: texts and data, for shops also product, customer and order data, as CSV, JSON or XML, and images and other media in their original formats. XICTRON only hands over the implementation itself after a buyout.
(2) The customer may request the export from receipt of the notice of termination; XICTRON hands it over within ten working days of the request. Without a request, XICTRON hands it over at the end of the contract. The website remains online until the end of the contract unless it is suspended under Section 5 (4).
(3) XICTRON deletes the customer’s content and data 30 days after the end of the contract, but not before the export has been handed over and only insofar as there is no statutory retention obligation. On request, XICTRON confirms the deletion in text form. Backups are deleted when they expire as scheduled, at the latest seven months after the end of the contract.
(4) Even after termination for good cause, XICTRON deletes the customer’s content, data and domain only after the export has been handed over; Section 7 (4) sentences 3 to 5 of the Terms for Hosting do not apply in this respect.
§13 Data protection and processing on behalf
(1) Insofar as XICTRON processes personal data for the customer, for example in hosting, forms, the shop or maintenance, the parties conclude a data processing agreement under Article 28 GDPR before this processing begins. In matters of data protection, it takes precedence over these terms.
(2) For operation, XICTRON takes the technical and organizational measures under Article 32 GDPR described in that agreement and uses subprocessors only in accordance with its rules.
(3) These terms and the general terms do not contain any consent of the customer to the processing of personal data.
§14 Final provisions
(1) Declarations under these terms require text form; an email is sufficient.
(2) For ongoing contracts, XICTRON changes these terms only by agreement with the customer.
(3) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
(4) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from the contract is XICTRON’s registered office.
(5) The English version is provided for information. The German version is authoritative.