netfiles GmbH General Terms and Conditions
§ 1 Scope
- netfiles GmbH services are provided exclusively on the basis of these terms and conditions. If a user disputes these terms and conditions, he will no longer be allowed to use netfiles services.
§ 2 Ending or Changing a Contract
- The formation of the contract occurs when the customer completes and submits the registration form and when net-files GmbH activates the service.
- netfiles GmbH retains the right to change these terms and conditions at any time. If this is the case, customers will be notified of the changes by e-mail. The customer is considered to have approved the changes if he does not issue any objection within 4 weeks of the change notification being sent. The customer will be explicitly informed of this legal consequence in the changes notification.
§ 3 Preconditions for Use
- Before he can start using netfiles, the potential customer must fill out and submit a registration form with personal information (in particular his surname, name and e-mail address). All fields that are marked as obligatory must be correctly completed.
- If one or more obligatory field is not correctly completed, it will not be possible to use netfiles.
- If one or more of the obligatory field was deliberately filled out incorrectly, netfiles GmbH can refuse the customer in question access to the service.
- netfiles can only be used if these terms and conditions are explicitly accepted.
- The user agrees to receive a regular e-mail newsletter. This newsletter can be cancelled by the user at any time.
§ 4 Services
- netfiles GmbH allows users to save and manage data online, using the netfiles system.
- netfiles GmbH reserves the right to change the scope of services at any time, within reason. In particular, this could happen for technical reasons. Insofar as it is reasonable for the customer, netfiles will announce the changes within a sufficient period of time.
- netfiles GmbH is not responsible for the content that a user stores on netfiles. Any opinions or claims expressed in the user’s documents are the sole responsibility of the user who created and provided access to the document, and not the responsibility of netfiles GmbH. netfiles does not in any way examine content before it is stored or published.
§ 5 Pricing/Charging/Rights of Retention
- The usage fee is calculated according to the netfiles price list on the website at the time of registration. The usage fee is quoted before VAT.
- The usage fee is due immediately after the request for payment has been sent. If the contract is extended for 6 months (according to § 6), the fee for the new period of usage is due at the beginning of the extended period.
- Payment can be made by direct debit or by invoice. Your personal data such as your name, address or bank account details are protected by modern security systems.
- The customer shall only be entitled to offsetting rights if his counter claims are declared legally valid, are undisputed or have been recognized by netfiles GmbH. Also, he is authorised to exercise his right of retention in as far as his counterclaim is based on the same contractual relationship. Offsetting is also permissible if a counter claim based on a right of retention as outlined in the previous sentence gives way to a claim for compensation.
- If the customer defaults in payment, netfiles GmbH is authorized to demand default interest to the amount of 5% p.a. above the respective base lending rate of the European Central Bank. If netfiles GmbH can prove higher rate of damage caused by default, these claims may also be made.
§ 6 Termination/Cancellation of Contract
- As long as nothing to the contrary has been agreed, the duration of the contract is six months. Either party can withdraw from the contract within a cancellation period of one month before the end of the contract. If the contract is not terminated by the end of the contract duration, the contract duration is automatically extended by six months. The right to terminate the contract without notice remains unaffected.
- Termination of the contract by the customer must be submitted in written form (by e-mail, fax or post).
- netfiles GmbH retains the right to terminate the contract without notice for cause (extraordinary termination). This is valid particularly in exceptionally severe cases of violation of the terms and conditions (particularly violations of the Obligations of the User in § 8 of these terms and conditions).
- On termination, netfiles GmbH has the right to delete all customer data after the customer having been informed and given reasonable time and opportunity to save his data before it is deleted.
- The notification that the contract is being terminated by net-files GmbH is considered delivered when the e-mail is sent, if non-delivery of information occurs as a result of the supplied e-mail address having been wrongly entered by the customer.
§ 7 Temporary Suspension
- netfiles GmbH is authorized to block connection to the user’s data on the Internet (suspension), if there is sufficient reason to suspect illegal content, if netfiles learns this from a warning by the allegedly injured party, unless it is obviously unfounded, or as the result of investigations by state authorities. The block is restricted to the supposed illegal content, insofar as this is possible. The user shall be informed of the suspension and its reasons without delay and directed to remove the allegedly illegal content or present his or her argument for its legality. The user may also be required to prove the legality of the content. The suspension shall be removed as soon as the suspicion has been invalidated.
- If the customer does not cover payment obligations within ten days of the payment being due, net-files GmbH is authorized to block connection to the user’s data on the Internet (suspension). The user will be immediately informed of this action. The suspension will be lifted as soon as any arrears have been payed.
§ 8 Obligations of the User
- The user ensures that he is not contravening any applicable laws by using the netfiles service. In particular, he undertakes:
- not to use netfiles to store or disseminate any immoral or illegal content;
- to observe existing youth protection legislation, in particular not to store or make accessible any pornographic writing or picture (§ 184 StGB);
- not to store or make accessible any copyright protected content without the necessary permissions (in particular copyright protected music or third party software);
- not to store or make accessible any propaganda by anti-constitutional organizations (§ 86 StGB);
- to respect the privacy of others and therefore not to store or disseminate any offensive, slanderous or threatening content;
- not to execute any programs that could disrupt or modify the netfiles service (in particular, denial-of-service attacks);
- not to make any unauthorized attempts to access the data of another user (in particular breaking into the system).
- If the user violates the obligation outlined in the first paragraph of § 8, it is his obligation to compensate netfiles GmbH for the costs incurred, as well as to indemnify and exempt netfiles GmbH from third party claims for damages and the reimbursement of expenses caused by the infringement. This shall also be the case where the damage was caused by a third party, insofar as this damage is the fault of the user. The damages for which compensation is to be provided include especially the reasonable costs of any legal defense that netfiles may require. The rights of netfiles to suspension of content and extraordinary termination remain unaffected.
- The user is obligated to protect his or her access against unauthorised use by third parties. This provision especially prohibits sharing of the password with other persons. The user assumes liability for any unauthorized use of his or her data stored at netfiles, insofar as such use is made possible by the behaviour of the user.
- All material provided by netfiles or a third party, including text, software, photographs, videos, graphics, music, and sound, is protected by copyright in the form of both individual works and collections. The user is allowed to download and use this material privately within the strict limitations of copyright law. However, users are prohibited from duplicating, copying, transmitting, distributing, publishing, or commercially exploiting this material. Users are also prohibited from converting this material to other data formats by other methods, either electronically or in any other form.
§ 9 Data Security
- netfiles GmbH is obligated to maintain the strictest confidentiality with respect to any secrets of the user which may become known to netfiles.
- Personal data that is gathered by net-files GmbH as part of the application process or for the purpose of performing services or communications shall only be processed or used by net-files GmbH when this is approved by the user or required or permitted by law.
- netfiles GmbH undertakes to treat as confidential all documents and other information that it receives from customers or users (“confidential information”) within the framework of its services, and not to pass this information on to third parties without the express agreement of the user. net-files GmbH also undertakes to delete/destroy all confidential information at the request of the user.
- netfiles GmbH ensures that access to confidential information is only granted to employees who absolutely require this access for technical reasons or in order to optimally carry out the service as specified in the user’s contract, and that these employees are also bound to confidentiality.
- Unless the customer expressly objects, netfiles is entitled to reproduce the name and logo of the customer on its website and in other marketing material.
§ 10 Exclusion of Warranty
- The user agrees and acknowledges that netfiles is provided for user “as is” and that netfiles GmbH disclaims any warranty of any kind, either expressed or implied. netfiles GmbH provides no guarantee or promise as regards the objectives of using netfiles, the accuracy or reliability of information obtained over netfiles, the meeting of user’s requirements or continuous, timely, secure and error-free operation of the service. The risks of use are borne entirely by the user. Downloading or otherwise acquiring material or files using our services is at the discretion of the user and any risks associated with these actions are also borne by the user. Any damages that may result from the user of netfiles are the sole responsibility of the user.
- To the extent permitted by law, netfiles GmbH is not liable for any punitive, indirect or incidental damages, or for any consequential damages whatsoever that may result from the access to or use of the service (or the impossibility to do so).
§ 11 Liability
- netfiles GmbH shall make all reasonable efforts to prevent unauthorized persons from gaining access to the data stored on netfiles.
- If the system is not available at all, or not available with the full range of features, for reasons for which net-files GmbH cannot be held responsible, or for maintenance-related reasons, netfiles GmbH assumes no liability for damages, including consequential damages, that may result for the user.
- netfiles GmbH has no control over the transmission of data via the Internet or the World Wide Web. netfiles GmbH therefore provides no guarantee that the transmission of files or documents to or from netfiles will be successful or free of errors.
- The user shall be responsible for creating periodic backup copies of his data.
- Neither netfiles GmbH nor users of netfiles shall be responsible for the illegal behaviour of other users, even if such behaviour is associated with the content and use of netfiles.
- Liability for events that are not the fault of net-files GmbH, such as official acts, labour disputes, accidental damages, and acts of God, is precluded.
- In the case of damages resulting from default, impossibility or breaches of material contractual obligations, netfiles GmbH shall only be held liable insofar as the damages were foreseeable. In the case of a breach of material contractual obligation, net-files GmbH accepts liability only in the case of gross negligence or malicious intent, and again only if the damages were foreseeable. For tortious claims, liability only exists in the case of gross negligence or malicious intent; this is not valid if the tortious claims compete with contractual claims that are excluded from liability according to paragraphs 1 and 2. Liability pursuant to the German Product Liability Act shall remain unaffected. The universal burden of proof shall remain unaffected by this regulation.
- Liability of netfiles GmbH for any incidents while the user account is in the free test period shall be restricted to malicious intent and gross negligence.
- The limitation of claim is no longer then 2 years. The start of the limitation period is according to § 201 BGB. Paragraph 1 does not apply to statutory warranty periods and tortious claims.
§ 12 Other Agreements
- The language of the contract is German.
- If the user is a businessman, a legal person of public law or a public service special asset, then the exclusive jurisdiction is Burghausen. The same applies, when the customer does not have a place of jurisdiction in Germany.
- Paragraph 1 is not valid if the legal dispute involves claims other than those of an economic interest or if an exclusive place of jurisdiction is applicable for the dispute.
- The place of fulfilment for delivery and payment is Burghausen, our place of business.
- All legal relations between net-files GmbH and the user shall be governed by the laws of the Federal Republic of German, even if the user’s place of residence or business is in another country.
(Status April 7, 2015)