Specific Terms and Conditions of Business for Ocster Secure Storage
Section 1: Subject Matter of the Agreement
- The general terms and conditions of business of Ocster GmbH & Co. KG, Oldenburg (Oldb), Germany (“Ocster”) shall apply in addition to these specific terms and conditions of business.
- Ocster shall provide the customer with the agreed amount of memory space on a server not reserved exclusively for him for the purposes of data backup. The extent of the contractual services results from the service specification that can be viewed at http://www.ocster.com/ocster-secure-storage/en at the time of ordering for the product version selected by the customer, as well as from the information contained in the order confirmation (“Ocster Services”).
- The service can only be used once the user identification and personal password (subsequently referred to as “access data”) have been entered. This access data will be defined by the customer upon registration and confirmed by Ocster.
- Ocster shall be free to select the server and its location, including locations outside of Germany. Ocster shall be entitled to use third-party servers to fulfill its contractual obligations.
- The provision of server functions to the customer will be software-controlled. The service may only be used with authorized Ocster software. The software must be up-to-date at all times (update obligation). The updates will be provided free of charge. Furthermore, the service may only be used on one of the customer’s computers.
- The availability of Ocster’s servers will be limited at times when the server is not available due to technical or other problems that are beyond the control of Ocster (force majeure, negligence of a third party, etc.). Ocster may also limit access to the services inasmuch as such limitation is required for the purposes of ensuring the reliability of network operations, the maintenance of network integrity, particularly the prevention of serious disruptions of the network, the software or stored data. Furthermore, Ocster reserves the right to temporarily limit or cut off individual services for operational reasons without notice, insofar as this is required to ensure proper operation of the system. Claims by the customer based on the system’s partial or complete unusability during this period are excluded.
- If Ocster defaults on performance obligations, the customer shall only be entitled to withdraw from the Agreement if Ocster fails to comply within a reasonable extension as set by the customer. The deadline must be set in writing. The written form can be replaced by electronic form if the customer includes his name in the declaration and attaches a qualified electronic signature to the electronic document, in accordance with the Digital Signature Act. The extension must be for at least two weeks.
Section 2: Term, Termination
- If the Agreement is concluded for a limited period or if a minimum contractual term has been agreed on with the customer, the Agreement shall be extended by the agreed period or minimum term, but by not more than one year, if it is not terminated with a notice period of two weeks before the end of the limited period or minimum contractual term.
- In the case of agreements with a term of up to twelve months, Ocster shall be entitled to terminate the Agreement with a notice period of four weeks. This shall also apply if the Agreement has been extended by a fixed length of time.
- The right of both parties to terminate without notice for good cause remains
unaffected. In particular, good cause shall be deemed to exist for Ocster if
- is in default of payment by more than 20 calendar days,
- culpably breaches a material contractual obligation,
- culpably breaches the terms and conditions of use for the Ocster software.
- Any termination must be made in writing in order to take effect.
Section 3: Prices and Payment
- The fees are to be paid in advance for the agreed settlement period, as usage-independent remuneration. They do not include Internet or telephone charges for the transmission of data and access to the server. The customer shall pay for these separately in accordance with the agreements he has entered into with his service providers.
- The fees are to be paid starting on the day on which the services are provided in full working order.
- If, in the event of termination, the usage fee is only to be charged for part of a settlement period, it will be calculated for each day on the basis of a 30-day month. Overpayments will be refunded to the customer, unless he himself is responsible for the premature termination of the Agreement.
- A reduction of the agreed consideration is excluded, even if the customer does not make full use of the memory space provided to him as per agreement. In the event that the customer uses memory space in excess of the agreed limit, Ocster shall be entitled to disable data transfer to and from the customer’s memory space and/or to charge the customer for the additional memory space used by him in accordance with the price list. Ocster will inform the customer of any excess use and its consequences without delay.
- If, and to the extent to which support services made use of by the customer can be proven to be required due to faulty performance on the part of Ocster, Ocster shall provide these services at no additional fee.
- Ocster shall be entitled to increase the fees for the terms of the extension. Ocster will inform the customer of the new fees no later than four weeks before the end of the agreed term. The price increase shall require the customer’s approval. This approval shall be deemed to have been issued if the customer does not object to the Agreement being extended with the new terms and conditions and exercise his right of termination on time. Ocster undertakes to advise the customer of the consequences of his failure to terminate the Agreement in the notification of change.
- In the event that the statutory VAT rate changes, Ocster shall be entitled to alter the prices of services delivered or provided in the context of a continuing obligation from the point in time at which the change to the VAT rate takes effect.
- If the fees or their components are altered within the settlement period (e.g. VAT increase), separate invoices will be issued for the service period from the start of the settlement period up to the point of the change and for the service period from the point of the change until the end of the settlement period.
- The fees shall be payable when an invoice is issued by Ocster. The invoice will be sent to the customer by e-mail, unless otherwise agreed.
- If the customer is in default of payment, Ocster shall be entitled to immediately block the customer’s access to the server.
Section 4: Further Obligations of the Customer
- The customer must take customary security standards into account when selecting his access data and prevent the data from being accessed by third parties. The customer shall be obliged to change his password if he has reason to presume that it has fallen into the hands of third parties. The customer can change the password himself online at any time. If there is reasonable suspicion that the access data is being used by unauthorized third parties, Ocster shall be entitled or, if requested to do so by the customer in writing, obliged to temporarily block access. The customer will be informed of this in writing and will be sent new access data. The customer shall bear the costs incurred in this context. If, through the negligence of the customer, a third party uses the services of Ocster by misusing the passwords, the customer shall be liable to Ocster for the usage fee and any damages.
- Apart from this, the customer shall thoroughly check that each program is free from defects and is suitable for use in his specific situation before commencing operation of the program. This shall also apply to programs that he receives from Ocster. The customer is expressly made aware that even minor alterations to the software can affect the executability of the entire system.
- Direct or indirect use of the Ocster Services by third parties is only permitted if the customer has expressly notified Ocster of this in writing and Ocster has issued its approval in writing. Approval is not required for employees of the customer acting within the scope of their duties for the customer or for cohabitants of the customer. If Ocster does not grant its approval for the third party use, neither the customer nor the third party shall be entitled to a claim for reduction, reimbursement or other damages.
- The customer must accordingly familiarize a third party with the use of the services if he allows this third party to use the Ocster Services. The customer shall also pay the charges and fees incurred through the authorized or unauthorized use of the Ocster Services by third parties by means of the access possibilities made available to him, if and to the extent that he is responsible for this use. If the customer objects that charges and fees invoiced to him have not been caused by himself or by third parties for whom he is responsible, he must provide evidence of this.
- The customer is further obliged
- to use the Ocster Services solely for the purposes of data backup;
- to inform Ocster—in writing where requested—which technical equipment will be used to access the Ocster Services;
- to ensure that neither the Ocster infrastructure nor Ocster or third parties are harmed by his usage or by that of the third parties for whom he is responsible;
- not to misuse the means of accessing the Ocster Services or to make it possible for third parties to misuse these.
- not to use the Ocster Services for the purposes of circulating or referring to information;
- to observe all statutory provisions relevant to the use of the Ocster Services. The customer shall release Ocster from all claims resulting from the breach of this duty;
- to take the general principles of data security into account,
- to draw Ocster’s attention to observable defects or damage without delay (fault report) and, within reason, to take all measures which enable the defect or damage and its causes to be identified and which facilitate or accelerate the elimination of the fault. The fault report must be addressed to the support team responsible for the customer;
- If the customer breaches one of the aforementioned duties and fails to comply with a warning notice to that effect, then Ocster shall be entitled to terminate the contractual relationship without observing a notice period. Until the matter is resolved, Ocster shall also be entitled to prevent the services from being used contrary to the terms and conditions by blocking access or by other suitable means. The customer shall also be obliged to reimburse Ocster for all directly or indirectly incurred material and human resources expenses and any other expenditure.
- Upon termination of the Agreement, the customer shall be responsible for retrieving his data from the Ocster server and for securing it elsewhere if necessary. Ocster shall grant the customer the possibility of post-contractual retrieval for this purpose for a period of two weeks in the event of termination by the customer or termination without notice, and four weeks in the event of termination by Ocster. Ocster will delete the data at the end of this period.
Section 5: Data Protection
Ocster instructs the user in express terms that the protection of his data regarding data transmissions via open networks such as the Internet cannot be guaranteed in full under the current state of technology. The customer understands and acknowledges that Ocster can view, in technical terms, the user data stored on the server at any time. The assertion of claims against Ocster resulting directly or indirectly from the illegal misuse or spying out of customer data by third parties, despite Ocster having taken extensive security measures, is excluded. For further details, see the Ocster Data Protection Provisions.