The following Standard Terms and Conditions (hereinafter referred to as “STC“) of wusys GmbH, Vilbeler Landstraße 255 in 60388 Frankfurt am Main (hereinafter referred to as “wusys“), regulate the rights and duties of the contracting parties relating to the services offered by wusys. The STC of wusys are in part specially tailored to the range of services offered. Additional terms with regard to Colocation are specified in Section 8, whereas Section 9 provides special terms relating to Connectivity.
1. General Regulations / Amendments
wusys shall provide the services offered by it solely on the basis of the following Standard Terms and Conditions exclusively to enterprises within the meaning of Section 14 BGB (German Civil Code). Any standard terms and conditions provided by customers of wusys will not be accepted in so far as they deviate from the provisions set out in wusys’ Standard Terms and Conditions, unless such different STC have been agreed to by wusys expressly and in writing.
wusys shall at all times be entitled to change its STC as well as its defined services and prices if there are practical reasons for such a change. For a period of four months following conclusion of contract, no price increase shall be allowed. The fact that amendments to the STC have been made shall be communicated to Customer by e-mail. Amendments will be published online on the Internet at the “http://www.wusys.com/en/footer/agb.html” web page and will be color-coded for a period of 2 months. Customer is expressly required to study and save the STC of wusys. Unless Customer opposes within two months following notification of an amendment, however, at the latest upon the amendment’s coming into effect, the amendment shall become an effective component of the contractual agreement. In case Customer should object to an amendment within the specified time, wusys shall be allowed to terminate the contractual relationship as of the earliest possible time or promise Customer the continued existence of the current contracts with terms remaining unchanged.
2. Conclusion of Contract
Any contracts with wusys shall principally not come into existence before (express) written acceptance by wusys. Any offers by wusys shall be subject to confirmation. They shall be limited in time; provided that Customer signs an offer within the set period, wusys must declare or refuse acceptance within a time period of one week. Upon expiration of the time limit, the offer shall be deemed accepted by wusys. After input of its complete data, Customer shall receive an electronic acknowledgment of the order.
3. Services Provided by wusys
The services to be provided by wusys shall ensue from the respective Performance Specifications communicated to Customer together with the offer subject to confirmation. wusys shall guarantee the availability of its services as specified in the Service Levels of the Performance Specifications. This shall not apply to any time periods when the services are not available due to any technical or other circumstances being beyond wusys’ control (sabotage by third parties, force majeure, etc.). The same shall apply also in the event that the hardware or software used by Customer and any third-party services, for example the Internet connection, are subject to failures or faults beyond wusys’ control.
wusys shall strive to recover any faults/problems within its sphere of responsibility and influence as soon as possible.
4. Customer’s Duties and Obligations
Customer shall warrant that the data communicated to wusys by Customer is complete and correct. Customer has to inform wusys of any changes of its data immediately. This shall apply particularly to any changes of its name, address or any other data with regard to e-mail, phone and fax contact, as well as to its banking connection data.
Customer shall engage not to use the services offered by wusys for the purpose of disseminating contents violating any statutory prohibition or third-party rights (e.g. copyright). Customer shall particularly undertake not to spread any advertising via e-mails forwarded through the services rendered by wusys without the respective recipient’s express consent being available. Customer shall engage to disseminate neither any spams nor e-mails of a violence-glorifying nature.
Upon request by wusys or third parties, for example any state investigating authorities, Customer shall be obligated to assist immediately and fully in the discovery of and inquiry into any violations listed in Section 4.2.
Customer shall be obligated to keep any access data/passwords made available to it in confidence.
As soon as wusys gets to know that Customer fails to perform any of the aforesaid duties/obligations, wusys shall be authorized to instantly discontinue its services or block Customer’s access to wusys’ server. Any cost in this respect incurred by wusys has to be reimbursed by Customer.
5. Terms of Payment
Depending on the type of service, the fees agreed for the respective services have to be paid in advance either for the agreed term of the contract or on a monthly basis. Payment shall be made into wusys‘ bank accounts after transmission of an electronic invoice by wusys. The period allowed for payment shall be 14 days from billing. Any deviating periods for payment shall be disclosed on the acknowledgment of the order and, later, the invoice.
In the event that Customer should fall into arrears with the payment of the agreed fees, wusys shall charge default interest of 8% above the then current reference rate fixed by the European Central Bank.
In addition to the aforesaid, wusys shall in the event of default charge a handling fee for any justified reminders of in each case € 5.00, however maximally € 15.00, legal VAT included, unless Customer provides proof of an inferior loss. Should Customer be in default as regards payment of the fees for a period of more than 10 days, wusys shall be authorized to discontinue the services and block access to wusys’ services.
6. Contract Period / Termination of Contract
The duration of the contract and any renewal arrangements are fixed in the respective offer/order form. The contract period shall extend for twelve months, unless either party gives notice to terminate the contractual relationship at least six months before expiration of the agreed contract period. Notice to terminate the contract before expiration of the agreed duration may only be given for good cause. A good cause shall, inter alia, be presumed if Customer fails to perform its duties and obligations from the contractual relationship, makes false statements, uses wusys‘ infrastructure for disseminating illegal contents or is in default of payment for a period of more than four weeks from the agreed due date.
A good cause for termination on the part of Customer shall exist if wusys should not provide the agreed services even after a reminder by Customer and fruitless expiration of a deadline of seven days for remediation of the impairment of the performance agreed by contract.
Provided that no contract period has been agreed by the parties to the contract, the contract will be concluded for an indefinite period of time. Both parties shall be allowed to give notice to terminate the contract any time. The period of notice shall be three months to the end of a calendar month. Notice to terminate the contractual relationship may also be given in written form by electronic means.
7. Liability of wusys
As regards the services to be rendered by it, wusys shall always only be liable in the case of intent and gross negligence. In case of slight negligence, liability shall be limited to the violation of any duties being of substantial importance to the contract (cardinal duties) and to any typically occurring damages which, in view of the then known circumstances, could have reasonably been foreseen by wusys at the time of conclusion of contract.
Other than in the case of intent and gross negligence, and provided that no imperative provisions of the law are infringed, wusys shall not be liable for lost profits and third-party damages or damages to any downstream systems.
wusys has to be notified of all liability claims and claims for reduction of price by Customer in writing, at least on the merits, within three months from the time when the reason for such claims was recognized or would without gross negligence have been recognizable. If no such notice is given within three months from the time when the damage was detected or could have been detected in the absence of gross negligence, liability of wusys shall be excluded. The exclusion of liability shall not apply in the case of injury to Customer’s life, body and health. In this respect, wusys shall anyway be subject to unlimited liability.
In case of slight negligence, wusys‘ liability shall be maximally limited to the amount paid by Customer during the service period. Limitation of liability shall not apply in the case of injury to life, body and/or health and in the case of liability under the German Product Liability Act (Produkthaftungsgesetz). wusys’ liability for warranted characteristics shall not be affected by the limitation of liability either. Liability shall, however, be limited to the fees paid by Customer within the service period. Provided that the scope of application of the German Telecommunications Act (Telekommunikationsgesetz (TKG)) is open, the provisions regarding liability of Section 44a TKG shall remain unaffected.
8. Additional Terms and Conditions for Using wusys Colocation
wusys shall permit Customer during the contract period the use of the colocation site as follows:
a) Customer shall be allowed to use the data center floor space or the colocation site exclusively to install, store and operate the equipment.
b) Customer shall not be allowed to lay itself any cables or the like outside the colocation site made available to Customer.
c) wusys shall be authorized to disconnect, detach or remove any lines laid by Customer in breach of the contract, if such lines should not have been removed by Customer upon expiration of four (4) weeks following wusys’ request to remove such lines.
d) wusys shall be authorized to carry out any necessary cleaning work with regard to the colocation site made available, provided that Customer has been informed by wusys 48 hours in advance.
e) Customer shall not be granted any protection from competition. wusys may at its complete discretion especially offer colocation sites to third parties possibly being competitors to Customer.
f) wusys shall at all times be entitled to inspect the colocation sites without advance notice.
g) Any services whatsoever to be rendered by wusys pursuant to this Colocation contract shall explicitly be services and no work performances so that wusys has to make every effort for achieving performance, however, without being obligated to effect such performance.
h) In order to take effect, the assignment of Customer’s claims under the contract shall require wusys’ prior written consent. wusys may, notably for financing purposes, assign any claims arising from this contract without consent being required.
Relocation of equipment at the data center:
a) Giving at least three (3) months’ written notice to Customer, wusys shall be authorized to demand during the contract period that, on the basis of a relocation plan, the equipment be transferred from the colocation site to another site of equal quality and size and installed there. wusys shall bear any necessary and evidenced cost. Customer shall prepare a reasonable cost estimate for this.
b) Notwithstanding wusys’ right to relocate the equipment, wusys shall involve Customer in the determination of a time frame for the relocation of Customer’s equipment and fix the timing so as to limit interference with the operation of the equipment as far as possible.
Customer shall assume the following duties vis-à-vis wusys:
a) to provide for the delivery, bringing-in and installation of its equipment on its own responsibility, and to warrant with regard to the equipment and any other items brought in and installed that
a. they are approved for the intended use and comply with the respective technical standards;
b. their operation is in compliance with technical and legal regulations applicable at the time; and that
c. their state of repair and condition will be maintained in such a way as to exclude any damage to third-party property, in particular the building or other colocation spaces, and any injury to third parties, in particular to visitors and employees.
b) The same shall apply to the type of installation of the equipment.
c) To keep the equipment and the space or the racks at all times in an operational and safe condition.
d) Customer has to observe the orders from wusys in terms of technical and installation standards with regard to the building as well as any orders as to dealing with electrical power and the instructions and directions concerning cable management and cabling methods, and shall make sure that, in particular:
a. no installation, modification, alteration of or addition to the equipment will increase the equipment‘s floor loading or environmental conditions beyond the technical and installation standards set by wusys in relation to the building; and
b. the air conditioning of spaces and racks respectively, as well as of the room will not be affected.
e) Customer has to comply with:
a. any legislation as well as with any rules and directions in respect of the building and its use;
b. the instructions for health protection and the rules and regulations concerning the building and its use that have been provided by wusys to the customer.
c. When using the colocation site and the building, Customer will adhere to and comply with public law provisions (e.g. building law, health and work protection, fire protection, emergency exits, etc.) and any reasonable instructions by wusys.
f) Customer agrees not to impair, damage, interfere with or inhibit third parties or third-party property, in particular the building and/or third-party facilities at the building.
g) Customer agrees not to make any structural changes or install any fixtures with regard to the building and the colocation sites.
h) Customer agrees to remedy any damage it is responsible for, and to remove any unauthorized modifications and fixtures within one (1) week after a written request by wusys. If Customer should not comply with such a request, wusys itself shall be allowed to do such work by way of substitute performance at the expense of Customer.
i) Customer agrees to keep wusys free from all cost, claims, demands, losses, damages, expenses and liabilities of any kind (reasonable cost of legal advice and representation included) wusys may feel indirectly or directly exposed to relating to the infringement of industrial property rights or the impairment of third parties due to the use or possession of the equipment or computer programs associated with such equipment.
j) wusys shall not acquire any legal status with regard to the equipment. Customer shall declare that all items brought into to the colocation site are the property of Customer, and that they are neither subject to a pledge or any other type of encumbrance, except within the usual context of rental or lease or under reservation of title.
Structural changes at the data center
a) Any physical changes, fixtures and installations – beyond Customer’s equipment at the colocation sites – shall require wusys’ written consent. All cost in this connection incurred shall be borne by Customer.
b) wusys shall at all times, even without Customer’s consent, be allowed to effect physical changes to and at the building as well as to and at the colocation sites if such changes serve the maintenance or improvement of the building or the colocation sites, or the avoidance of dangers. This shall also apply to any work and structural measures which, although not necessary, are suitable to modernize and/or better utilize the building and the piece of real estate respectively, or which are appropriate to save operating and incidental expenses. This shall also include structural alteration work in connection with the grant of a new lease with regard to individual rooms or the redevelopment of the entire building. Customer shall have to tolerate such work.
c) wusys shall be obligated to announce the work – if feasible – at least thirty (30) days before commencement and, to the extent that the colocation sites are concerned, perform such work in a timely manner.
If necessary, Customer has to assist in the performance of such work and shall keep all colocation sites affected by the aforesaid measures accessible, provided that this is reasonable in view of Customer’s legitimate interests. Customer is not allowed to impede or hold up the performance of the work. Should Customer incur any cost due to its assistance, wusys shall have to reimburse such cost, if necessary and reasonable, upon proof being submitted by Customer.
Access to the data center and physical access supervision
a) All employees and visitors of Customer have to observe the rules referring to access and physical access supervision.
b) wusys has to be informed about the allocation of badges for the building and any changes to such badges, lost badges for the building and of any violation of security regulations immediately. Customer shall bear all cost incurred by wusys as a result of any violation of restrictions of entry or due to damaged or lost badges.
c) wusys shall reserve the right to deny, for good cause, certain visitors or staff of Customer access to the building or parts of the building, or to order such people out off the building or remove them from the latter. A good reason shall especially exist if there is sufficient cause for wusys to assume that the individuals concerned
a. have violated or will violate access or security regulations;
b. have entered or will enter the building without being authorized to do so;
c. or pose any other threat.
d) In emergencies, i.e. in case of imminent danger in respect of persons, the building, other objects of legal protection or the spaces, wusys may access all spaces and take any measures necessary to avert such danger.
Extended limitation on liability
The parties are aware of the fact that any violation of the duties related to the operation of the equipment may cause serious and unforeseeable damages. wusys is not able to foresee or estimate the extent and amount of such damages arising from Customer’s business activity, Furthermore, coverage of such damages cannot be reflected to a reasonable extent by the service fees to be paid to wusys by Customer. Therefore, the parties agree the following extended limitation on liability for wusys within the scope of what is permitted by statute:
a) The following shall apply to the liability of wusys, excluding liability for intent and gross negligence:
a. Liability shall be limited to typical and foreseeable damages;
b. wusys‘ total liability per year of contract shall each time be limited to the amount of the annual service fees, and
c. all exclusions of and limitations on liability shall also apply to any vicarious agents.
b) Customer shall be allowed to assert any claims for damages and claims for the reduction of the monthly service fee because of defects of the colocation sites or inadequateness of the infrastructure of the building and its technical facilities only in so far as wusys is, through negligence or intent, responsible for such inadequateness or defects. This shall not apply in the event that the colocation sites are in general unusable even without any fault on the part of wusys.
c) The aforementioned limitations on liability shall not apply to any injury to life, body and health.
Extended termination arrangement
a) Beyond the standardized legal reasons and the aforesaid regulations, wusys shall be allowed to give extraordinary written notice of termination with immediate effect if
a. Customer should commit a severe breach of contract for which there is no remedy;
b. Customer should not remedy a breach of contract which is remediable within a time limit of fourteen (14) days following receipt of a written request to remove the breach of contract or discontinue such breach of contract, unless an obligation to pay is concerned;
c. Customer should leave the colocation site to third parties in whole or in part without being so authorized;
d. Customer definitely ceases to perform its duties from this contract in whole or in part without being so authorized;
e. opening of insolvency proceedings in respect of Customer’s assets is applied for before transfer of the colocation sites;
f. there are indications for the fact that a cause for opening insolvency proceedings exists with Customer (i.e. Customer is excessively indebted or insolvent, or insolvency is imminent), notably in the case of execution against the property of Customer because of a claim in excess of € 20,000.00.
b) Beyond the standardized legal reasons, Customer shall be allowed to give extraordinary written notice of termination with immediate effect if
a. wusys should commit a severe breach of contract for which there is no remedy;
b. wusys should not remedy a breach of contract which is remediable within a time limit of fourteen (14) days following receipt of a written request to remove the breach of contract or discontinue such breach of contract, unless an obligation to pay is concerned.
c) Upon termination of the contract, Customer has to deinstall and remove, at its own expense, the equipment, accessories and installations (e.g. distributor strips, electrical power runs, etc.) from the colocation sites, to repair any damage to the latter and return the colocation sites cleared and cleaned together with all access cards delivered to Customer. Aside from that, Customer has to reconvert any structural changes it may have made. The parties shall prepare an appropriate record of transfer in respect of the return of the colocation sites.
d) In the event that Customer should not discharge its duties pursuant to c), the following shall apply beyond wusys‘ statutory rights to compensation for use and damages, and following the fixing of a reasonable time limit of maximally one week:
a. Should the equipment not have been deinstalled and removed by Customer even upon expiration of the period of grace, wusys shall, as Customer’s agent, be allowed to deinstall, remove and sell the equipment in the open market without more ado. wusys will keep the proceeds from a private sale (net of the cost and expenses for deinstallation, removal, storing and sale) for Customer.
b. Customer shall release wusys from any recourse by third parties whose items left at the colocation sites upon termination of this contract are also sold.
Customer shall bear all risks in respect of the equipment and the items at the colocation sites and be responsible for taking out insurance for the equipment, the items and its business activity at the colocation sites against any associated risks (in particular damage to property, business interruption, consequential damage, lost profits, etc.) The insurance protection has to adequately cover all kinds of damages related to these risks. Insurance cover must be granted with a waiver of recourse to wusys by the insurance company. Upon request, Customer shall provide wusys with a copy of the insurance policy as proof of the existence of insurance cover and the declaration of waiver of recourse to wusys.
9. Terms and Conditions for Using wusys Connectivity
Customer’s duty to cooperate
a) Customer shall only be allowed to connect equipment provided with the European Union’s conformity sign (CE) with wusys’ network accesses. The interfaces to be used are listed in the product specification for the wusys Internet Connectivity product.
b) Where required, Customer shall assist in the discharge of regulatory and legal duties incumbent on wusys.
g) In case Customer should not comply with the aforesaid cooperation duties, wusys may charge to Customer any cost and/or expenses thereby incurred.
c) Customer shall be responsible for making sure that, by using the transmission services provided by wusys, it does not violate any law or third-party rights. Customer has to use the transmission services made available by wusys solely according to purpose and abstain from any actions which might endanger wusys’ network. Customer shall in particular be obligated to: ensure that the applicable legal provisions, especially the provisions with regard to the protection of children and young people, domestic and international copyrights, rights to a name and trademark rights as well as personal rights and third-party proprietary rights are observed; not to use the services made available by wusys for disseminating or retrieving illegal and/or unethical contents, or to aid and abet such conduct. This shall cover compliance with the prevailing rules for the Internet and other networks accessible to Customer via the connections provided by wusys; not to gain any unauthorized access to protected hosts, networks, accounts or services;
d) not to use its e-mail functions for sending any so-called bulk mails (“junk mail”, “spam mail”, “USERNET mail”); ensure that wusys reputation is neither put at risk nor clouded.
e) In the event that Customer should disregard these obligations, wusys shall reserve the right to block Customer’s connection without prior notice.
f) Customer agrees to release wusys from any liability vis-à-vis third parties which is based on the circumstance that Customer’s use of the transmission services made available by wusys contravenes any third-party rights or legal provisions.
10. Place of Jurisdiction / Applicable Law
The exclusive place of jurisdiction for all disputes arising from or in respect of this contract shall be Frankfurt am Main, provided that Customer is a merchant or a public law entity. Exclusively the law of the Federal Republic of Germany shall be applicable to all contracts entered into on the basis of these Standard Terms and Conditions and to the services rendered by wusys respectively, as well as to any claims resulting therefrom, to the exclusion of the provisions with regard to a uniform UN law on the sale of goods.
11. Data Protection
wusys shall be authorized to collect, use and process Customer’s company data within the scope of legal data protection rules. Any further use which might be necessary for contract implementation shall require Customer’s prior consent. There shall be no unauthorized passing on of Customer’s data to third parties outside wusys. However, any firms charged separately with contract implementation and billing of the services shall not be deemed unauthorized persons.
wusys shall expressly advise Customer of the fact that, according to the current state of the art, data protection cannot be fully guaranteed in regard to data transmission on the Internet. Customer itself shall take full care of the safety and backup of data transmitted to the Internet and stored on Web servers.
12. Final Provisions
In the event that any of these provisions should be or become ineffective, this shall not affect the effectiveness of the remaining provisions. The ineffective provision shall be replaced by a provision commensurate with or at least approaching the purpose of the arrangement which would have been agreed by the parties in order to accomplish the same economic and legal result should they have been aware of the inoperativeness of the provision. The same shall apply in the case of any regulatory gap.
as at Dezember 2013